Belize Bank Ltd v Attorney General of Belize (on Behalf of the Government of Belize) et Al

• Jurisdiction: Belize
• Judge: Conteh, C.J.
• Judgment Date: 01 August 2008
• Court: Supreme Court (Belize)
• Docket Number: 338 of 2008
• Date: 01 August 2008

Supreme Court

Conteh, C.J.

338 of 2008

Belize Bank Limited

and

Attorney General of Belize (on Behalf of the Government of Belize) et al

Appearances:

Mr. Vincent Nelson QC, with Mr. E. Andrew Marshalleck, for the applicant/claimant.

Ms. Lois Young SC, with Ms. Pricilla Banner, Crown Counsel, for the first, second and sixth defendants.

Mr. Michael Young SC for the third, fourth and fifth defendants.

Constitutional Law - Fundamental rights and freedoms — Right to fair hearing by an independent and impartial authority — Whether the Banks and Financial Institutions Appeal Board was independent and impartial under s. 6(7) of the Constitution — Finding that the statutory provisions for appointment and membership of the Appeal Board were constitutional — Presumption of constitutionality of legislation not displaced.

Conteh, C.J.

1 It is necessary that I start with stating the relief and claims the claimant, Belize Bank Ltd., seeks from this court, and these are as follows:

• (a) A Declaration that the Banks and Financial Institutions Appeal Board cannot lawfully be seized of the claimant's appeal and does not have, and cannot be granted, any jurisdiction in this matter;

• (b) a Declaration that the powers granted to the Minister in Part X of the Banks and Financial Institutions Act, Chapter 263, 2000 (are inconsistent with section 6 of the Constitution of Belize) and therefore are unlawful and void;

• (c) a Declaration and Order that the Financial and Banks Institutions Appeal Board, as so constituted for the purposes of determining any appeal by the claimant from the decision of the Central Bank to issue directives on 14 March 2008 is not an independent and impartial authority (within the meaning of section 6 of the Constitution of Belize);

• (d) a Declaration that any decisions taken, orders made or awards issued by the Financial and Banks Institutions Appeal Board constituted on 5 April 2008 under the Act are unlawful and void; and

• (e) a Declaration that the issue of the directives against the claimant by the Central Bank of Belize in circumstances where an Appeal Board cannot lawfully be seized of the claimant's appeal and/or where an independent and impartial Appeal Board cannot lawfully be appointed is inconsistent with those provisions in section 6 of the Constitution of Belize guaranteeing the claimant equal protection of the law and the Directives are therefore unlawful and void; and

• (f) a final injunction restraining the Financial and Banks Institutions Appeal Board as constituted on 5 April 2008 from taking any steps in relation to any dispute or appeal conducted pursuant to the Act arising from the directives issued by the Central Bank to BBL on 14 March 2008 pursuant to section 36(5) of the Act.

2 In support of its case the Belize Bank filed two affidavits both sworn to by Philip Johnson, its Chairman. The first affidavit was sworn to on 23rd May 2008, and the second, on the 16th June 2008.

3 The defendants in this action are, the Attorney General, the Minister of Finance who is also the Prime Minister, but he is sued in his capacity as the Minister of Finance because the Banks and Financial Institutions Act — Chapter 263 of the Laws of Belize, Revised Edition 2008, places certain responsibilities on him, the exercise some of which, in particular the appointment of two members of the Appeal Board, has given rise to this case by the claimant. The others defendants are the Chairman and the two other members of the Banks and Financial Institutions Appeals Board (hereafter the Appeal Board for short). The sixth defendant, the Central Bank of Belize, was joined as a result of an interlocutory application by the claimant and pursuant to an order of this court made on 16th June 2008. In that order, the Central Bank was restrained from acting upon its directives dated 14th March 2008 to the Belize Bank until further order from this Court or the determination of the present proceedings.

4 On behalf of the defendants affidavits were also filed: two by Mr. Sydney Campbell, the Governor of the Central Bank, the first dated 7th June 2008 and the second the 25th June 2008; an affidavit by Samuel Lungole Awich J. as chairman of the Appeal Board; and two affidavits of Mr. Joseph Waight, the first dated 25th June 2008 and the other sworn to on 11th July 2008. At the start of the substantive hearing of these proceedings on 16th July 2008, Mr. Vincent Nelson QC, the lead counsel for the Belize Bank, objected to this other affidavit of Mr. Waight as being too late coming after the time for disclosure I had ordered. The substance of this affidavit was to put in evidence the letters of appointment of the two lay members of the Appeal Board. I ruled however, that in the interest of justice I need to see all the materials pertinent to the case, bearing in mind the continuing duty of disclosure incumbent on parties in the light of Rule 28 of the Supreme Court Civil Procedure Rules.

5 I should state at this point that this court is not concerned with the validity or otherwise of the Central Bank's directives of 14th March 2008 to the Belize Bank. In these proceedings, the Belize Bank is challenging the compatibility of the Appeal Board itself and the appointment of two members of the Appeal Board (Messrs. Jaime Alpuche and Jeffrey Locke) with section 6 of the Constitution of Belize, and the jurisdiction of the Appeal Board and the Central Bank regarding the time to lodge an appeal or make representation as provided in section 36(5) and (6) of the Banks and Financial Institutions Act.

6 The hearing of this action occupied the best of three days starting at 3p.m. on the afternoon of Wednesday, 16th July 2008 and was concluded on Friday 18th July 2008. Voluminous materials, including the several affidavits and the exhibits annexed thereto, were put in evidence. And the learned attorneys for the parties also submitted, in addition to their oral arguments and submissions, a fair amount of written submissions (or “skeleton” argument and submissions as they called them).

I shall therefore proceed to consider in this judgment, the several relief and claims, the Belize Bank is seeking in these proceedings from this Court; although I find considerable overlap between some of the declarations being sought.

7 It is, I believe, helpful in this regard to give a chronology, if only as a synopsis, of the events that have culminated in this case. I do so only for the sake of a summary of events leading up to this case. The court is grateful to Ms. Lois Young Barrow SC, the lead attorney for the first, second and sixth defendants, for providing the chronology from which the summary is culled. The claimant Belize Bank has not demurred or taken issue with that chronology, although a chronology of events is provided as well in Part A of the first affidavit of Mr. Johnson, its Chairman. I have however drawn mainly from the chronology filed by Ms. Young Barrow SC in her written submission as it contains only the bare recital of the events. There is no dispute however between the parties as to the chronology of events leading to this case.

CHRONOLOGY OF EVENTS

MARCH 2008
14th March 2008	Central Bank writes letter to Belize Bank Limited directing Belize Bank Limited to credit Government of Belize's account at the Central Bank with US $10 million and provide written documentation on the Taiwan US $10 million. Exhibit Philip C. Johnson 9–1st Affidavit.
18th March 2008	Belize Bank Limited responds to Central Bank's letter of 14th March 2008 to dispute Central Bank's power under section 36(5) of the Banking and Financial Institutions Act to issue directives and complained of inadequate time in which to respond under section 36(5). Exhibit Philip C. Johnson 10 — Letter from Barrow & Co. — 1st Affidavit
20th March 2008	Central Bank varies the contents of its letter of 14th March to the extent of affording Belize Bank Limited an additional 10 days from 24th March 2008 to respond to the irregularities. Exhibit Philip C. Johnson 10 25th March 2008 Belize Bank Limited sends to the Chief Justice notice of its intention to appeal. Exhibit Philip C. Johnson 13–1st Affidavit — para. 26.
25th March 2008	Belize Bank Limited sends to the Chief Justice notice of its intention to appeal. Exhibit Philip C. Johnson 13–1st Affidavit — para. 26.
27th March 2008	Fixed Date Claim by Belize Bank Limited against Central Bank (Claim No. 196 of challenging Central Bank's directives. Exhibit Sydney Campbell 3A — 1st 2008) Affidavit — para. 9.
28th March 2008	Belize Justice Sir John Muria: Belize Bank Limited Notice of Application for interim injunction in relation to Claim No. 196 of 2008. Exhibit Sydney Campbell 4–1st Affidavit — para. 10.
APRIL 2008
1st April 2008	Chief Justice appoints Justice Samuel Awich as Chairman Appeal Board constituted. Exhibit Joseph Waight 2–1st Affidavit.
3rd April 2008	Expiry of time limit to present views to Central Bank on variation or removal of directives. 3rd April 2008 Date Belize Bank Limited claims it first learned that Appeal Board constituted. Hearing of Belize Bank Limited's Notice of Application for interim injunction against Central Bank in Claim 196 of 2008.
3rd April 2008	Delivery of decision of Muria, J. re 28th March Notice of Application in Claim 196 of 2008. Exhibit Sydney Campbell 5–1st Affidavit. Order of Justice Muria staying Claim 196 of 2008 until decision of Appeal Board and ordering Central Bank not to enforce directives until Appeal Board seized of Belize Bank Limited's appeal. (Belize Bank Limited applied for permission to appeal against Order of Muria, J. — see Philip C. Johnson 2 — now abandoned).
5th April 2008	Appointment of Appeal Board Gazetted. Exhibit Sydney Campbell 1–1st Affidavit.
14th April 2008	Belize Bank Limited writes Central Bank and says it...