Michael Belgrave v Judicial and Legal Services Commission
| Jurisdiction | Belize |
| Judge | Chabot, J |
| Judgment Date | 06 September 2023 |
| Court | Supreme Court (Belize) |
| Year | 2023 |
| Docket Number | CLAIM No. CV 689 of 2022 |
CLAIM No. CV 689 of 2022
IN THE SENIOR COURTS OF BELIZE
IN THE HIGH COURT OF BELIZE
Sharryn S. Dawson for the Applicant
Samantha Matute and Alea Gomez for the Respondents
The applicant, Mr. Michael Belgrave, applies for permission to apply for the judicial review of a decision of the Judicial and Legal Services Commission (the “Commission”) not to refer his complaint against then Justice Lisa Shoman to the Belize Advisory Council pursuant to section 98(4) of the Belize Constitution. The applicant also applies to strike out the respondents' affidavit in response to the application because it was filed late and does not comply with Part 10 of the Supreme Court ( Civil Procedure) Rules, 2005 (“CPR”).
For the reasons outlined in this decision, I dismiss both applications with costs to the respondents.
On May 8 th, 2022, then Justice Lisa Shoman rendered a decision in a probate matter involving Mr. Belgrave. 1 In her decision, Shoman J. denied Mr. Belgrave's application for an interim order and freezing injunction, struck out Mr. Belgrave's affidavit in support of the fixed date claim form, and struck out a portion of his claim. The matter was stayed until the defendant provided certain documents to Mr. Belgrave. Mr. Belgrave was ordered to pay costs to the defendant.
Mr. Belgrave was dissatisfied with the decision and with Shoman J.'s conduct in the hearing. Mr. Belgrave alleges that the decision “was littered with many contradicting paragraphs, disregarded sworn evidence and the said Judge also decided to determine several critical points in dispute ahead of a pre-trial review or trial contrary to my human rights”. 2 Mr. Belgrave also alleges that Shoman J.'s conduct in court “endanger[ed] the rule of law and represent[ed] a high degree of neglect of duty; raise[d] serious concerns of procedural fairness, apparent bias and infringement of [his] constitutional right to have matters tried before a competent tribunal under the constitution of Belize”. 3
On or around July 1 st, 2022, Mr. Belgrave's attorney filed a complaint with the Commission. Mr. Belgrave's attorney sought to move the Commission to invoke its powers under section 98(4) of the Belize Constitution to recommend to the Belize Advisory Council to investigate the question of the removal of Shoman J. for misbehavior, misconduct, and inability to conduct the affairs of the Judiciary in accordance with the Belize Constitution.
On or around October 4 th, 2022, Mr. Rolando Zetina, secretary of the Commission, responded to Mr. Belgrave's attorney indicating that the Commission had determined that the question of Shoman J.'s removal “is not susceptible to matters for the Commission but may well be amenable to the appellant process”.
On or around January 31 st, 2023, Shoman J. resigned from her position as justice of the High Court of Belize.
The applications for permission to apply for judicial review and to strike out the respondents' affidavit in response
On November 30 th, 2022, Mr. Belgrave applied for permission to apply for the judicial review of the
Commission's decision. Mr. Belgrave seeks the following orders and declarations:
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1. Leave be granted to the Applicant to apply for judicial review of the decision made by the 1 st respondent that the matter of a request under section 98(4) of the Belize Constitution for the removal of the Honourable Madam Justice Lisa Shoman from the Judiciary of Belize for misbehavior and inability to perform the function of the office ‘is not susceptible to matters for the Commission’ and to seek in relation to those proceedings the following orders and declarations, namely:
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a. An order of Certiorari quashing the decision of the 1 st respondent that the question of the removal of a Justice in particular, Madam Lisa Shoman ‘is not susceptible to matters for the Commission’;
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b. A declaration that the 1 st respondent has a public duty to consider all complaints against any and all judicial officers who are alleged to have acted in a manner to suggest misbehavior or inability to hold judicial office and/or has breached judicial oath, or acted corruptly;
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c. An order of Mandamus directing the 1 st respondent to perform its public duty to consider and conduct an investigation of allegations against Madam Justice Lisa Shoman made on or around 30 June 2022 in which the question of the sitting Justice's removal was put in writing pursuant to section 98(4) of the Belize Constitution claiming in summary that the said Justice had:
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i. Breached her judicial oath;
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ii. Made several unlawful orders;
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iii. Repeatedly acted contrary to the Constitution, Laws, and Civil Procedure Rules in Belize;
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iv. Contravened the Human Rights of the applicant; and
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d. A declaration that the 2 nd respondent has a public duty to ensure that the 1 st respondent performs its duties competently and efficiently when called upon to do so regardless of political affiliations.
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2. The 1 st and 2 nd respondents be made to indicate the date on which the alleged decision of the Commission was made that the matter of a request under section 98(4) of the Belize Constitution for the removal of Madam Justice Shoman from the Judiciary of Belize for misbehavior and inability to perform the function of the office ‘is not susceptible to matters for the Commission’ and to provide a copy thereof to the Court and the Applicant;
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3. The Applicant be granted an extension of time, if necessary, for the making of this application for leave to apply for judicial review;
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4. Costs to be costs in the application; and
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5. Any other further relief the Honourable court deems fit.
This matter was called up for a direction hearing on January 31 st, 2023. At the hearing, I made various orders for the orderly disposition of the application, including an order that the respondents file an affidavit in response on or before February 20 th, 2023. The respondents uploaded their affidavit in response on the e-filing system on February 21 st, 2023. The affidavit in response was marked as filed on February 22 nd, 2023. The respondents did not apply for an extension of time to file the affidavit in response.
On March 15 th, 2023, the applicant filed an application to strike out the affidavit in response for failure to comply with the court order. The applicant also argues that the affidavit in response does not comply with the requirements of Part 10 of the CPR.
The direction hearing coincided with Shoman J.'s last day in office. At the direction hearing, I raised the issue of mootness and requested to be addressed on the issue at the hearing of the application.
The following issues must be determined:
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1. Whether the affidavit in response should be struck out for failure to comply with the court order and/or the CPR;
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2. Whether the matter has been rendered moot or academic by the resignation of Shoman J.;
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3. If the matter is not moot, whether leave to apply for judicial review should be granted.
The applicant seeks to strike out the respondents' affidavit in response on two grounds. First, the applicant argues that the affidavit in response should be struck out as having been filed in breach of the court order. Second, the applicant argues that the affidavit in response does not comply with Part 10 of the CPR as it does not respond to each and every allegation in the application for permission to apply for judicial review, and does not exhibit or attach the documents relied on by the respondents.
The respondents' affidavit in response was filed two days after the date set by court order. The respondents did not obtain consent from the applicant to extend the time for filing the affidavit in response, nor did they apply to the court for an extension of time. The respondents' counsel admitted to the breach of the court order, but argued that no sanction applies because Part 26 of the CPR dealing with the case management powers of the court is inapplicable before a substantive claim has been filed.
The respondents' counsel relied on two precedents in support of her position. I do not find A-G v Matthews 4 to be relevant to the resolution of the issue at hand. Matthews deals with the issue of sanctions applicable for a failure to file a defence to a claim in accordance with the rules of the CPR. Matthews does not deal with the exercise of the court's case management powers before a substantive claim is filed.
I n Golding & The Attorney General of Jamaica v Miller, 5 the Jamaican Court of Appeal considered whether the trial judge had the power to grant an extension of time to apply for judicial review consequent to an order giving the applicant 14 days to do so pursuant to rule 56.4(12) of the Jamaican CPR (which is equivalent to CPR rule 56.4(11) in Belize). The applicant contended that Part 11 of the Jamaican CPR dealing with applications for court orders gave the trial judge the power to vary the conditions set in the order. The Court of Appeal disagreed, holding that Part 11 of the Jamaican CPR provides general rules in relation to applications for court orders which are superseded by the specific rules in Part 56. The Court of Appeal noted that “where it is intended that these special rules are to be
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