Esquivel v Usher

• Jurisdiction: Belize
• Court: Supreme Court (Belize)
• Judge: Singh, J.
• Judgment Date: 16 April 1991
• Docket Number: Action No. 359 of 1990
• Date: 16 April 1991

Supreme Court

Singh, J.

Action No. 359 of 1990

Esquivel

and

Usher

Appearances:

Mr. Dean O. Barrow S.C. and Mr. Denys Barrow for Plaintiff/respondent.

Mr. Derek Courtenay S.C. and Mr. Eamon Courtenay for Defendant/applicant.

Practice and Procedure - Parties — Whether proceedings should be set aside on ground that House of Representatives should be a party, or at least the Speaker — Application refused because to grant it would be to restrain the defendant, under penalty of law.

Singh, J.

1 On the 20th December, 1990, following the granting of leave, an Originating Summons was filed in the Supreme Court by the plaintiff herein, seeking the following reliefs, namely:

• (1) A declaration that under the provisions of Section 59(2)(d) of the Belize Constitution William Stanley Usher has vacated his seat as member for Toledo West in the Belize House of Representatives.

• (2) A declaration that under Section 59(2)(d) of the Belize Constitution William Stanley Usher is now no longer entitled to occupy a seat in the Belize House of Representative as the member for the Toledo West constituency.

• (3) An injunction to restrain the said William Stanley Usher from performing any functions as a member of the Belize House of Representatives until after bye-elections are held for the Toledo West constituency.

• (4) Such further or other relief as may be just.

• (5) Costs.

2 The defendant herein entered conditional appearance on the 8th day of January 1991, and on the 16th day of January 1991, applied to the Court for an Order that the Originating Summons and all subsequent proceedings be set aside on the grounds that:

• (1) The Plaintiff is not permitted to institute an action for the redress claimed herein by way of Originating Summons;

• (2) The Court has no jurisdiction to grant the third relief prayed for in the Plaintiff's Originating Summons;

• (3) The Plaintiff has failed to obtain leave to commence action against all necessary parties with the result that the Court is being asked to act in vain;

• (4) The Originating Summons herein was not served personally as required by the Supreme Court Rules.

3 This application was heard on the 29th day of January, 1991.

4 In support of Ground (1) of the application the applicant (defendant) submitted that as the respondent (plaintiff) had filed an action supported by an affidavit, it was mandatory that such action be commenced by the filing of a Writ of Summons, as prescribed by Supreme Court Rules (S.C.R.) Order III r. I, which reads:

“Every action in the Supreme Court shall be commenced by filing a writ of summons in the office of the Registrar; every such writ shall be indorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action.”

5 The applicant further referred the court to the Supreme Court of Judicature Act, Cap. 82 s. 2 where “Action” is defined as “a civil proceeding commenced by writ, or in such other manner as may be prescribed…”, and submitted that for the respondent to commence an action by any process other than a writ, such procedure must be prescribed by law. In support of this, the applicant referred the court to the case of Pierre v. M'Banefo et al (1964) 7 W.I.R. 433, and continued that to the extent that an applicant to the court wished to proceed by Originating Summons, he must satisfy the court that his mode of procedure is permissible.

6 In replying to these submissions on ground one the respondent submitted that both our S.C.R. as well as the Constitution provide for an action of this nature to be commenced in any one of several ways, including by Originating Summons. S.C.R., Ord. III, r. 1 must be read in conjunction with Ord. I, rr. 1 and 2. These state:

• “1. All actions which, previously to the commencement of the Supreme Court of Judicature Act, 1873 (Imperial), were commenced by Writ in England in Courts of Queens Bench, Common Pleas and Exchequer of Pleas; and all suits which, previously to the commencement of the said Act, were commenced by a Bill or information in the High Court of Chancery, or by citation or otherwise in the Court of Probate, shall be instituted in the Supreme Court of Belize by a proceeding to be called an action.

• 2. All other proceedings in and applications to the Supreme Court may, subject to these Rules, be taken and made by petition, motion or summons; or, if the Court shall in any case so permit, by summary application without previous formality.”

7 Clearly, continued the respondent, O. 3, r. 1 refers to actions mentioned in O. 1(1), and the present impugned procedure could not have been contemplated by O. 1, r. 1, nor actions filed previous to the Supreme Court of Judicature Act 1873 (Imperial). In the United Kingdom before 1981, there were provisions for the determination of questions of disqualification of members of the House of Commons. There was a 1957 Act (the House of Commons (Disqualification) Act, 1957) which in effect provided for the determination of disqualification of members of the House. Previous to the 1957 Act, the only basis for disqualification in the U.K. is as set out in Erskin May's PARLIAMENTARY PRACTICE, 18th ed. at pp 34 —49 (i.e. on the basis of being an alien, a minor, a lunatic, a peer, a bankrupt, etc.). Our provisions are based on the U.K. Act. Before 1873, there was not the form of action contemplated by our constitution, in the U.K. After 1957, in the U.K. the only method of applying for a disqualification lay to the Privy Council. Clearly, then, this action brought under our constitution of 1981 is a new action, not covered by S.C.R. O. 1, r. 1, consequently, not an action that must be commenced by a Writ of Summons. It is therefore covered by O. 1, r. 2. These proceedings may be taken or made by petition, motion, or summons. On that basis alone, it is proper for the plaintiff to have commenced this action by Originating Summons.

8 Furthermore, continued the respondent, the applicant referred the court to, and quoted extensively from, the case of Pierre v. M'Banefo. In that case at that time, it was not permissible for an Originating Summons to be used. There is no indication that in Trinidad and Tobago at that time there was anything comparable to our O. 1, r. 2. In any event, M'Banefo's case was disapproved by the Privy Council case of Jaundoo v. A.G. of Guyana [1971] A.C. 972, and thus overruled. The principle is clear: where Constitutions lay down formulae for redress, and do not prescribe any specific means, the Privy Council has provided that applicants may use any means to move the courts. No specific procedure is provided by our Constitution, therefore, on the authority of Jaundoo, any method of approaching the High Court may be used. Where Constitutional issues are at stake, the court will not refuse access to it because some rule of court has not been complied with, unless there is a prescribed procedure laid down by the Constitution itself.

9 Finally, on this ground, Mr. E. Courtenay for the applicant submitted that, prior to 1957, actions were brought seeking disqualification of members of the House of Commons, under the Disqualification Acts, e.g., the House of Commons (Disqualification) Act, 1782. Under this Act, the cases of Forbes v. Samuel, 29 T.L.R. 544 and Bird v. Samuel, 30 T.L.R., 323 were proceeded with by writ of summons. This was prior to our Supreme Court of Judicature Act, 1873. This shows that the present procedure should come under Rule 1, and not Rule 2 as argued. Also, with respect to Jaundoo's case, nowhere in Lord Diplock's decision is M'Banefo's case considered, so it could not be held to have overruled it. This case is inapplicable. It deals with a situation where a person was applying for redress to a contravention of his Bill of Rights provisions. In Belize, S.I. 32 of 1982 has made rules for those seeking redress to our Bill of Rights provisions. Under Article 86 of the Constitution, there is no power in the Court to make rules as to how to approach these courts, so it cannot be said that a rule-making authority is in dereliction. The case of M'Banefo ought to be applied to the present matter.

10 Turning now to ground two of the application, counsel for the applicant submitted that the court has no jurisdiction to grant to the respondent an injunction restraining the applicant from performing any function as a member of the House of Representatives. If it had jurisdiction any at all, such was limited to the making of the declarations prayed for under ss. (1) and (2) of the summons, and not those set out in ss. (3) to (5). The powers and jurisdiction of the court exercisable under Article 86 of the Constitution are specific and limited. All the court can do under this Article is to determine the questions set out in paragraph (a) to (c) of Article 86(1). In support of this contention, counsel referred to the case of Jones v. Gibbs & KNIGHT (1968) 12 W.I.R. 311.

11 In replying on this ground, counsel for the respondent submitted that the rationale for Jones v. Gibbs & KNIGHT (supra) cannot be ascertained. The general principle is that in Supreme Court actions, you claim all the reliefs to which you are entitled and which the court has the power to give. What prevents an injunction against the defendant? The case of Jones v. Gibbs (supra)...