Dwight Flowers v Master Martha Alexander

• Jurisdiction: Belize
• Judge: Chabot, J.
• Judgment Date: 13 December 2023
• Court: Supreme Court (Belize)
• Year: 2023
• Docket Number: CLAIM No. CV 185 of 2023

Between:

[1] Dwight Flowers

Applicant

and

[1] Master Martha Alexander

[2] Judicial & Legal Services Commission

[3] Minister of the Public Service, Constitutional & Political Reform & Religious Affairs

[4] Attorney General of Belize

Respondents

CLAIM No. CV 185 of 2023

IN THE SENIOR COURTS OF BELIZE

IN THE HIGH COURT OF BELIZE

Appearances:

Sharryn Dawson for the applicant

Godfrey P. Smith SC and Hector D. Guerra for the 1 ^st respondent

Samantha Matute and Jarvis Lou for the 2 ^nd to 4 ^th respondents

DECISION ON PRELIMINARY ISSUE OF LAW

(Jurisdiction)

Chabot, J.

1 On 28 ^th March 2023, Mr. Flowers applied for permission to apply for judicial review pursuant to Part 56 of the Supreme Court ( Civil Procedure) Rules, 2005 (“CPR”). Mr. Flowers seeks permission to apply for the following reliefs:

• 1. Leave be granted to the applicant to apply for judicial review of the decision by the 1 ^st respondent (hereinafter referred to as “the court”) that:

  • a. Points of law in reference to Belizean legislation are triable stating at paragraph 33, “Moreover, the defendant's further submissions, which shifted the basis of the point of law argument from the NLA to the Law of Property Act and the General Registry Act served only to show that the issues raised ought to be litigated at trial”;

  • b. The court is empowered or entitled to disregard settled case laws previously decided by the High Court of Belize, which Belizeans have relied upon and ordered their affairs around;

  • c. Submissions totaling twenty-five pages are lengthy, and automatically suggest triable issues stating at paragraph 17, “In further written submissions, the defendant's counsel dismisses the applicability of the NLA and shifts her argument to rely on the Law of Property Act and General Registry Act. In my judgment, the defendant's lengthy arguments opened the door to considerations of triable issues rather than to show that the test for a strike out application was satisfied”;

  • d. Legislations provided in full, which constitute annexes to counsel's submissions need not be read, reviewed or considered by the court in determining the point of law raised; and the nature of the applicant's land dispute need not be reviewed against the requirements stated in the land laws of Belize dealing with unregistered lands (the state of affairs prior to the disputed registration); and

  • e. The court is entitled to make its own facts contrary to the evidence before it; misinterpret the expert's report at will, and; disregard the law of evidence.

• 2. An order of certiorari quashing the decision of the 1 ^st respondent that suggesting that points of law are trial, and:

  • a. A declaration that the 1 ^st respondent has a public duty to decide and rule upon all points of law when called upon to do so; such failure and continuance to so act suggest misbehavior or inability to hold judicial office and breaches judicial oath;

  • b. A declaration that the Belizean public have a right to and deserve to have:

    • i. A competent court appointed to administer justice;

    • ii. Their litigious arguments read and duly considered by a competent court, regardless of the lengthy hours involved in doing so; and

    • iii. Settled laws upheld by all Justices duly appointed to serve Belize at all times;

  • c. A declaration that the applicant is owed a duty by any Justice (including the 1 ^st respondent if duly appointed) deciding its matters that it will correctly interpret the Laws of Belize; read submissions of counsel; and accurately summarize the evidence before the court including that of the court ordered expert before determination of a matter, regardless of how many hours it takes to do so and despite the length of the laws, cases and/or submissions;

  • d. A declaration that a failure by the 3 ^rd respondent to properly appoint competent and able professionals to the Judiciary of Belize endangers the legal system and the constitutional rights of Belizeans.

• 3. An order of mandamus directing the 2 ^nd respondent to perform its public duty to investigate the 1 ^st respondent's mode of leaving the public service given the applicant's contention under “Exhibit DF-61” that the 1 ^st respondent is currently still employed to the High Court of Trinidad and Tobago in the capacity of a Master until effective retirement on 24 ^th January 2024, and;

  • a. A declaration that the 1 ^st respondent cannot hold judicial office in two (2) jurisdictions concurrently;

  • b. A declaration that the 1 ^st respondent's oath in Trinidad and Tobago is first in time and continues to have force until its expiry on or around 24 ^th January 2024;

  • c. A declaration that the 1 ^st respondent has not been properly installed as a Justice in Belize; and

  • d. A declaration that all decisions made by the 1 ^st respondent in the assumed capacity of a Justice in Belize are null, void and of no effect.

• 4. The 1 ^st respondent be made to indicate the date on which the decision to retire from the High Court of Trinidad & Tobago effective 24 ^th January 2024 was made; the 2 ^nd respondent be made to indicate the effective date of the 1 ^st respondent's appointment to the Judiciary of Belize; and provide copies thereof to the court and the applicant.

• 5. An order restraining the 1 ^st respondent from further acting in the capacity of Justice of the High Court of Belize until the Honourable Court determines this matter.

• 6. The applicant be granted an extension of time, if necessary for the making of this application for leave to apply for judicial review.

• 7. Damages; costs; and;

• 8. Any other further relief the Honourable Court deems fit.

2 The matter was called up on 26 ^th April 2023 for the purpose of issuing directions for the hearing of the application. The court was advised that the 1 ^st respondent had not yet been served with the application and issued directions in that regard. Considering the nature of the application, the court, on its own initiative, raised the issue of bias and enquired whether the parties intended to object to the undersigned hearing the matter. Both parties indicated that they did not intend to raise any issue in respect of real or perceived bias. The hearing was adjourned until 9 ^th May 2023 for directions.

3 At the 9 ^th May 2023 hearing, the court noted that the affidavit in support of the application did not comply with the CPR as it had been sworn using a different claim number and parties. Directions were given for the re-filing of the supporting affidavit. The supporting affidavit was re-filed on 12 ^th May 2023.

4 At the 9 ^th May 2023 hearing, the respondents were also directed to file an affidavit in response to the application by 9 ^th June 2023, and the applicant to file his reply, if any, by 15 ^th June 2023. The hearing of the application was set for 27 ^th July 2023, with the applicant's written submissions due on 30 ^th June 2023, the respondents' written submissions due on 21 ^st July 2023, and the applicant's reply submissions due on 25 ^th July 2023.

5 The 1 ^st respondent filed an affidavit in response to the application on 8 ^th June 2023, and the 2 ^nd to 4 ^th respondents filed the first affidavit of Rolando Zetina in response on 9 ^th June 2023.

6 On 19 ^th July 2023, Mr. Flowers filed an application to strike out the respondents' affidavits on the grounds that they allegedly do not comply with the CPR, to summon the Chief Justice of the High Court of Trinidad & Tobago as a witness at the hearing of the application for permission to apply for judicial review, and for permission to serve documents outside of the jurisdiction (the “application to strike out”). The application to strike out was scheduled for 27 ^th July 2023, the same day the application for permission to apply for judicial review was scheduled to be heard.

7 At the hearing of the applications on 27 ^th July 2023, the respondents indicated that they had not been served with the filed copies of the application to strike out and required time to respond to it. I noted that the respondents' written submissions on the application for permission to apply for judicial review raised the issue of the jurisdiction of the court to deal with this matter, and enquired whether this issue should not be dealt with first. Mr. Flowers' counsel indicated that the issue of jurisdiction should have been raised by the respondents in a separate application before their defence had been filed, while the respondents' counsel argued that the issue of jurisdiction can be raised at any time.

8 Pursuant to my case management power to decide the order in which issues are to be tried ( CPR 26.1(2)(f)), I decided to deal with the issue of jurisdiction first as it could be determinative of the whole application. I directed that the applicant file written submissions on the issue by 18 ^th August 2023, that the respondents file written submissions in response by 8 ^th September 2023, and that the applicant file written submissions in reply, if any, by 22 ^nd September 2023. The hearing on the preliminary issue of law was held on 13 ^th October 2023.

Issues to be determined

9 The court must determine the following two issues:

• 1. Whether it is too late to raise the issue of jurisdiction; and

• 2. If it is not too late, whether the court has jurisdiction to hear the application for permission to apply for judicial review.

Analysis

Whether it is too late to raise the issue of jurisdiction

Submissions

10 The issue of the court's jurisdiction to deal with this matter was raised by the respondents in their written submissions in response to the application for permission to apply for judicial review. Mr. Flowers argues that the issue should have been raised in an application contesting the jurisdiction of the court before the respondents' defence was filed. Having filed a defence to the application for permission to apply for judicial review, the respondents have submitted to the jurisdiction of the...