Belize Bank Ltd v Attorney General et Al

• Jurisdiction: Belize
• Judge: Sosa, J.A.,Carey, J.A.,Morrison, J.A.,MORRISON, J.A.
• Judgment Date: 19 June 2009
• Neutral Citation: BZ 2009 CA 11
• Docket Number: Civ. App. 18 of 2008
• Court: Court of Appeal (Belize)
• Date: 19 June 2009

Court of Appeal

Sosa, J.A.; Carey, J.A.; Morrison, J.A.

Civ. App. 18 of 2008

Belize Bank Limited

and

Attorney General et al

Appearances:

Vincent Nelson, Q.C. and E. Andrew Marshalleck for the appellant.

Ms. Lois Young, S.C for 1st & 2nd respondents.

Michael Young, S.C. for 3rd, 4th & 5th respondents. Sixth respondent not represented.

Banks and banking - Power of the Central bank to issue directives — Powers of the Minister of Finance — Banks and Financial Institutions Act, s.36.

Sosa, J.A.

1 On 4 June 2009, the Court announced that, for reasons which it proposed to give in writing on the last day of its current sitting, the appeal of The Belize Bank Limited would be dismissed, with costs to all of the respondents, except for the sixth, such costs to be taxed, if not agreed, and that the orders of the court below would be affirmed. I concur in the reasons for judgment given by Carey, J.A. and Morrison, J.A., in their respective judgments, both of which I have read in draft.

Carey, J.A.

PREFACE

2 The Government of the Bolivarian Republic of Venezuela was minded in 2008 to provide financial assistance to the Government and people of Belize. To that end, the authorities in that country made available twenty million U.S. dollars which found its way into the Belize Bank Limited, the present appellant. These funds, the former Prime Minister Mr. Said Musa, explained in a public statement on 5 March 2008, were transferred to assist in housing, home improvements and a sports facility as to ten million dollars and the other moiety was used to settle an obligation of the government, by which it had guaranteed a loan made by Universal Health Services, a private company which ran a hospital. This event provoked a storm of criticism. In the event, there was a change of government. The new Prime Minister at a press conference in March 2008 stated that his predecessor was guilty of improperly diverting funds intended for the Belizean people. He also warned the appellant that he was putting it on notice that he would be seeking legal advice as to its liability to repay the ten million dollars. This act of generosity on the part of the Venezuelan government, apart from the political turmoil, generated a spate of litigation.

3 The Central Bank of Belize entered the fray. It launched an investigation pursuant to powers conferred on it under the Banks and Financial Institutions Act, Cap. 263, as a result of which it issued two directives to the appellant, only one of which is relevant to these proceedings, viz:

“BBL should forthwith credit GOB's account with the Central Bank of Belize with US $10 Million as per “Payment Details” stated on wire transfer instruction sent by Bandes-Fidei Comisos De Venezuela on the “Cash Payment Confirmation” dated 26 December 2007”.

The appellant wrote disputing, the Central Bank's power under section 36(5) of the Banks and Financial Institutions Act, to issue directives and complained of inadequate time in which to respond. The Central Bank allowed an extra ten days to respond to the concerns in the Central Bank's letter of 14 March 2008. On 20 March 2008, the appellant started proceedings in the Supreme Court challenging the authority of the Central Bank to issue the directives (claim No 180 of 2008). It also applied for an interlocutory injunction in relation to the directives. On 25 March 2008, the appellant signified its intention to appeal the directives to the Chief Justice as Chairman of the Appeal Board which, at that time, had not been constituted, and used the opportunity to inform the Chief Justice of that fact.

THE APPEAL BOARD

4 On 1 April 2008, the Banks and Financial Institutions Appeal Board (the Board) was constituted. The Minister of Finance (the Minister) appointed two Board members, Mr. Jaime Alpuche and Mr. Jeffrey Locke, the fourth and fifth respondents, while the Chief Justice nominated Awich J to be the Chairman in his stead. The Banks and Financial Institutions Act, stipulates that the Chief Justice or other judge of the Supreme Court nominated by the Chief Justice shall be Chairman of the Board. The Minister has the responsibility under the Act, to appoint two persons with knowledge of banking, finance or other related disciplines. It is the appointment of these two persons, among other matters, which has provoked the suit at the instance of the appellant against the respondents. The sixth respondent, it is right to point out, was joined as a party on the application of the appellant.

THE SUIT

5 The appellant sought the following relief:

• (a) a Declaration that the Banks and Financial Institutions Appeal Board cannot lawfully be seised 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 of Finance in Part X of The Bank and Financial Institutions Act, Cap. 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 Banks and Financial Institutions 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 independent and impartial within the meaning of section 6 of the Constitution of Belize;

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

• (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 seised of the Claimant's appeal and/or where an independent and impartial Appeal Board cannot lawfully be appointed is inconsistent with 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 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 the Bank on 14 March 2008 pursuant to section 36(5) of the Act.”

After a three day hearing between 16 and 18 July 2008 before him the Chief Justice reserved judgment until 1 August 2008, when he refused all the declarations and discharged the interlocutory injunction granted against the Central Bank on 18 June 2008. The Belize Bank Limited now appeals to this court.

THE GROUNDS OF APPEAL

6 There were four grounds of appeal by which the appellant sought to challenge the findings of the Chief Justice and impugn his judgment. I set them out hereunder:

GROUND 1

The Honourable Chief Justice erred in law and misdirected himself when considering whether the membership and appointment of the Appeal Board was independent and impartial in accordance with section 6(7) of the Constitution in finding that:

• (a) the facts of Claim No. 338 of 2008 and the statutory framework as set out in Part X of the Banks and Financial Institutions Act, 2000 were such that a fair-minded and informed observer would not conclude that there was any apparent bias in an Appeal Board of which two of the three members were appointed by the Minister of Finance;

• (b) as the Appellant did not harbour any suspicion of bias against the Chairman of the Appeal Board as constituted, the Appeal Board was independent and impartial because any majority decision of the Appeal Board must include the decision of the Chairman; and

• (c) The Appeal Board is consistent with section 6 of the Constitution because, pursuant to section 77 of the Act which allows any person aggrieved by a decision of The Appeal Board is not the terminus for an aggrieved person and the Appeal Board is subject to the subsequent control of a judicial body.

GROUND 2

The Honourable Chief Justice erred in law and misdirected himself when considering whether the Appeal Board had (1) jurisdiction to hear and determine the Appellant's appeal and (ii) the legal authority to extend the time limit within which the Appellant may appeal to the Appeal Board in determining that:

• (a) Section 36(6) of the Act is not a jurisdiction conferring provision so that any appeal to the Appeal Board in relation to directives issued by the Central Bank pursuant to section 36(6) of the Act should only correctly be engaged after representations have been made to the Central Bank in respect of the directives pursuant to section 36(5) of the Act;

• (b) There was nothing objectionable in The Appeal Board extending time for the lodging of an appeal pursuant to section 36(6) of the Act after The Appeal Board's constitution on 1st April, 2008; and

• (c) A person against whom directives have been issued by the Central Bank should refer any serious reservations they may have in relation to the Appeal Board constituted to hear and determine its (sic) appeal pursuant to section 36(6) of the Act to the Appeal Board itself by way of an application for recusal or to the Court of Appeal of Belize under section 77 of the Act but otherwise should taken the Appeal Board as they (sic) find it without seeking details about its members.

GROUND 3

The Honourable Chief Justice erred in law and misdirected himself when considering whether the powers granted to the Minister of Finance pursuant to Part X of the Act were inconsistent with the Act (sic) and therefore unlawful and void in determining that:–

• (g) the fact that the Minister of Finance was given the power to appoint two persons of a three person Appeal Board did not negate the appearance of bias and independence and impartiality of the Appeal Board without having due regard to the evidence put before the Supreme Court in relation to the position the Prime Minister of Belize (who is also the Minister of...