Belize Tourist Board v Flowers
| Jurisdiction | Belize |
| Judge | Conteh, C.J. |
| Judgment Date | 06 June 2001 |
| Docket Number | 440 of 2000; 67 of 2001; 68 of 2001 |
| Court | Supreme Court (Belize) |
| Date | 06 June 2001 |
Supreme Court
Conteh, C.J.
440 of 2000; 67 of 2001; 68 of 2001
Mr. Dean Barrow S.C. with Ms. Lois Young Barrow S.C. for the applicant.
Mrs. Roberta Magnus-Usher for the first respondent.
Mr. Fred Lumor for the second respondent.
Practice and procedure - Enforcement of arbitral awards — Applicant sought order to enforce arbitration order made between himself and respondents as order of court — Whether award void or unenforceable — Jurisdiction of arbitrator — Finding of procedural mishap by arbitrator in arriving at award — Decision that it would be unfair to allow award to take effect without further consideration by arbitrator of issue of quantum of general damages and participation in proceedings by respondents — Order that sole issue of quantum of general damages be remitted to arbitrator for consideration — Liberty to applicant to apply thereafter for order of enforcement — Costs to applicant.
The substantive application in this matter first came before this court on 3 November 2000. It was by way of an Originating Summons dated 5th October 2000 by which the applicant, Cedric D. Flowers sought leave of the court pursuant to section 13 of the Arbitration Act — Chapter 69 of the 1980 Revised Edition of the Laws of Belize, for an order to enforce an Arbitration Award made in an arbitration between him on the one hand, and the respondents on the other hand, as a judgment or order of the court.
On that date, the two respondents by their attorneys represented to the court that the Summons was only served on their clients on 24 October 2000 and would therefore request an adjournment.
When the application finally came on to be heard on 8th of February 2001, Mr. Fred Lumor the learned attorney for the second respondent and Mrs. Roberta Usher, the learned attorney for the first respondent, respectively indicated that they had filed separate actions, viz Actions Nos. 67 and 68 of 2001 in which they were seeking certain declarations from the court impugning the Award the applicant is seeking leave to have enforced as a judgment of the court.
After listening to the learned attorneys for both the applicant and the two respondents it was decided to hear the objections of the respondents why leave should not be granted to the applicant to enforce the Award. This judgment therefore addresses as well the several issues raised in Actions Nos. 67 and 68 by the second and first respondents respectively.
The initial Award in this matter was made by the Arbitrator on 30th April 2000 pursuant to a submission made in a written agreement between the applicant and the respondents dated 15 May 1997. However, by an order of this Court made on 6th July 2000, that award was remitted to the Arbitrator, following an application by the applicant to have it set aside or remitted on grounds of errors on the face of the Award.
As a consequence of the order to remit, the Arbitrator eventually published a Final Award on the 1st September 2000.
It is this Award of 1st September 2000 that the applicant is now seeking leave of this Court to have enforced as a judgment. Against this, the two respondents have taken several objections.
These objections are more fully set out in the respondents’ Summonses in Actions Nos. 67 and 68 of 2001 and their Affidavits in support thereof. In these summonses they are described as plaintiffs, but for the purposes of this application, we will call them ‘respondents’; and the first or second respondent respectively as the context requires.
What is plainly clear from the Affidavits of the respondents in support of their Summonses is the fact that they both had notice of and were aware of the arbitration proceedings the applicant had commenced that resulted in the initial Award. They chose then not to take part or contest those proceedings, including the appointment and or jurisdiction of the Arbitrator (See the Affidavit of Victor Espat dated 7th February 2001 particularly paragraphs 18 to 31 for the second respondent; and paragraphs 12 to 14 of the Affidavit of Tracy Taegar dated 7 February 2001 on behalf of the first respondent).
This, of course, is their undoubted right. But not having utilised that right, they have now come to court to impeach the Final Award on the several grounds stated in their summonses. This again, they are entitled to do as the law allows them to do so — Oil Producers Trading Co. Ltd. v. Societe Anonym Societe de Gestion d'Enterprise Coloniales (1934) 150 LT 475.
I should also state that the respondents had notice of and were aware of the application by the applicant to the Court in Action No. 222 of 2000 wherein he sought to set aside or remit the initial Award (see paragraphs 32 and 33; and paragraphs 15 and 16 of the above-mentioned Affidavits for the second and first respondents respectively). They could have, if they chose, joined in this exercise. But they again decided not to do so.
In the light of all this, it is perhaps understandable for the applicant to experience some feeling of exasperation by the objections taken by the respondents to his application for leave to enforce the Final Award as a judgment of the court.
Be that as it may, I must, perforce, examine these objections, and to these I now turn in order to determine the application for leave to enforce the Award.
The objections raised by the respondents may be stated as follows, although some of them are overlapping and this much was conceded by their attorneys who in arguing before me combined some of them.
The first objection by the respondents is that the Award is null and because the agreement upon which it was founded was validly terminated.
secondly, the Arbitrator had no jurisdiction to have embarked on the submission either because he failed to determine whether he had jurisdiction to proceed on the arbitration and that he was not appointed in accordance with section 6 of the Arbitration Act — Chapter 69.
Thirdly, the arbitrator misconducted himself and the proceedings by hearing on 16th August 2000 oral representations by the applicant on the Final Award in the absence of the respondents or their attorneys.
Fourthly, the Award is in any event futile and not binding on the respondents since there was no dispute or difference arising under Clause 8 of the Agreement dated 15 May 1997 to ground the appointment of an Arbitrator.
I shall now examine the several objections put forward by the respondents.
In the main, the respondents contend that the Award is a nullity and therefore unenforceable because the Agreement from which it flowed, that is, the Agreement dated 15 May 1997 between the parties, that is to say, Belize Tourist Board, the first respondent herein, of the first part, the Registrar of Hotels, the second respondent herein, of the second part and Cedric D. Flowers, of the third part and the applicant herein, is null and void as it is ultra vires, because the Hotels Act — Chapter 228 (as it then was) and its replacement, The Hotels and Tourist Accommodation Act — No. 12 of 1997 confers on the Registrar of Hotels, the second respondent, exclusively the assessment and collection of hotel taxes.
Moreover the argument runs, the applicant's authorization under the Agreement was validly terminated by the second respondent, the Registrar, as he is legally entitled to do in virtue of section 3 of Act No. 12 of 1997. Consequently, the respondents' contention continues, the revocation of the applicant's authorization instantly put an end to the Agreement, and therefore the Arbitration clause in paragraph 8 thereof (the submission) instantly ceased to exist.
To argue otherwise, the respondents submitted, would be to put a fetter on a statutory body by contract which would be impermissible in law.
Let me say straightway that having listened carefully to the arguments and submissions of the respondents on this score, I am not persuaded to agree with them. I find it difficult to accede to the contention of the respondents, especially the second respondent, the Registrar of Hotels, that the contract with the applicant was ultra vires the Hotels and Tourist Accommodation Act — No. 12 of 1997.
An analysis of this Act shows that the Registrar, the second respondent, is invested with the power to carry out its provisions. Also, he may authorise either generally or specially any other person to discharge any power, duty or function under the Act or regulations made under it. He may also revoke or vary such authorization at any time — See section 3 of the Act.
It is, in my view, clear therefore that the Registrar together with the first respondent, the Belize Tourist Board, were within the provisions of the Act to have entered into the Agreement of 15 May 1997 with the applicant. In particular, for example, subsection (2) of section 3 of the Act provides: “In the exercise, performance or discharge of the powers, duties or functions conferred, imposed upon or assigned to him by or under this Act, the Registrar shall be subject to the general direction of the Belize Tourism Board.”
Surely therefore, the Agreement of 15 May 1997 and its several provisions cannot be ultra vires of either or both respondents.
Indeed, the whole tenor and provisions of the Agreement were intended to utilise the services of the applicant to facilitate and enhance the tax assessment and collection regime under Part IV of the Act: see preambular paragraph (5) and the dispositive paragraph 1(1) of the Agreement.
I should also point out here, even if only in parenthesis, that within the purposes, purview and...
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