Saulus Penner v The Attorney General of Belize

• Jurisdiction: Belize
• Judge: Goonetilleke, J.
• Judgment Date: 12 June 2024
• Docket Number: CLAIM No. CV 751 of 2023
• Court: Supreme Court (Belize)

In the Matter of an Application under Section 20 of the Constitution of Belize and Part 56 of the Supreme Court (Civil Procedure Rules) 2005

and

In the Matter of an Application under Sections 3 (a), 6 (1) and 17 of the Constitution of Belize.

Between:

[1] Saulus Penner

[2] Erika Penner

Claimants

and

[1] The Attorney General of Belize

[2] The Belize Police Department

Defendants

CLAIM No. CV 751 of 2023

IN THE HIGH COURT OF BELIZE

Constitutional Claim — Detention of Property — Misuse of Drugs Act

Appearances:

Mr. Leeroy Banner for the Claimants

Ms. Imani Burgess, Crown Counsel with Mr. Stanley Grinage, Crown Counsel for the Defendants

DECISION ON STRIKE-OUT APPLICATION

Goonetilleke, J.

1 The claimants, husband and wife, Saulus and Erika Penner ( the Penners), filed a constitutional claim on 24 ^th November 2023, alleging unlawful detention of their vehicles by the Belize Police Department ( BPD). They also alleged that in any event the continued detention of their vehicles was illegal after the relevant Magistrate to whom the BPD had made application for forfeiture of their vehicles under Section 29(4) of the Misuse of Drugs Act1(MDA) had denied and dismissed that application.

2 The Penners allege that the actions of the BPD violate their rights under Section 3 (a) of the Constitution (“ Life, liberty, security of the person, and the protection of the law”), read with Section 6(1) of the Constitution (“ All persons are equal before the law and are entitled without any discrimination to the equal protection of the law”) and Section 17 of the Constitution (“ No property shall be compulsorily taken possession of and no interest in or any right over property of any description shall be compulsorily acquired except by or under a law…”).

3 The defendants on the 5 ^th of March 2024, filed an Application to strike out the claim on the grounds set out in Rule 26.3 (1) (b) of the Supreme Court ( Civil Procedure Rules) 2005 ( CPR) stating that the claimants' application is an abuse of the process of court as the claimants have an alternate private law remedy of ‘Detinue’ and ‘Conversion’. The defendants state further that the claim is also liable to be struck out in terms of Rule 26.3 (1) (c) of the CPR as the claim does not disclose any reasonable ground for bringing the claim as the Penners' vehicles had been lawfully detained and were required as productions in a case to be instituted in court against several accused including Mr. Penner, the 1 ^st claimant.

4 Consequent to filing written submissions, the Application to strike out the claim was heard in open court on 31 ^st May 2024. The court was informed by counsel for both parties that the case in the Magistrates' court in regard to the charges against Mr. Penner and the other accused, in connection with which the vehicles were detained,

was to be taken up on 3 ^rd June 2024. Therefore, on the suggestion of the court, the claimants' counsel was asked to obtain instructions as to whether the claimants would be satisfied to await the outcome of the lower court in regard to those charges, if the defendants would give an undertaking that they would release the vehicles on the conclusion of that case in the event that the claimant was found not guilty. The claimants were not agreeable and wanted to proceed with this constitutional claim. The defendants also indicated that they would not be able to give such an undertaking. The counsel for both parties thereafter made submissions in regard to the application to strike out the claim

5 Having heard counsel for both parties and having considered the material available to the court, for the reasons set out below, I hold that the claim should be struck out as it discloses no reasonable ground for bringing the claim and also because it is an abuse of the process of court as an alternative remedy is available to the claimants.

Background

6 As stated in the first affidavit of Deputy Commissioner of Police ( DCP) Bartholomew Jones, on or about the 28 ^th of November 2021, the Narcotics Unit of the Belize Police Department had received information that an airplane carrying illegal drugs (narcotics) had landed at the Hidden Valley airstrip in the Mountain Pine Ridge area in Cayo District. The police on arrival found the charred remains of an aircraft at the airstrip and inquiries revealed that no permission was granted for any aircraft to land at the Hidden Valley airstrip on 28 ^th November 2021.

7 According to DCP Jones' witness statements revealed that a white and black Toyota Hilux with license plate CYC 4198 was seen at the airstrip and that police officers stated that the same pickup truck had evaded them in the Mountain Pine Ridge area upon an attempt to intercept it. Upon tracing the vehicle, it was revealed that it was registered to Mr. Saulus Penner, the 1 ^st claimant. Upon questioning by the court, Mr. Banner, referring to the affidavit of Saulus Penner informed that the vehicle was seized and detained by the police when it was parked in the premises of the 1 ^st claimant and that the 1 ^st claimant was also arrested.

8 The narration in relation to the detention of Mrs. Erika Penner's pickup truck is more dramatic. According to DCP Jones, on or about the 30 ^th of November 2021, when the police were searching the Mountain Pine Ridge area, they came across an abandoned grey colour pickup truck without any licence plates. A trace of the vehicle identification number (VIN) revealed that it belonged to Erika Penner, the 2 ^nd claimant. On the same date, on a search of the Mountain Pine Ridge area, the police had recovered fifty-two (52) sacks with leaves containing rectangular shapes suspected to be cocaine which upon analysis by the Forensic Lab, tested positive as cocaine. The abandoned motor vehicle of Mrs. Penner was thus seized and detained. The court questioned Mr. Banner, counsel for the claimants, whether there had been any complaint lodged by Mrs. Penner that her vehicle was lost or stolen. There was no material placed before the court to demonstrate such a complaint and Mr. Banner answered in the negative. Mrs. Erika Penner, the 2 ^nd claimant was neither charged nor arrested. A third vehicle not belonging to either of the Penners was also seized and detained by police at a checkpoint in the Mountain Pine Ridge area on the 28 ^th of November 2021.

9 According to the affidavit of DCP Jones, Saulus Penner, the 1 ^st claimant, together with five (5) others (who had been in the third pickup truck) had been arrested and formally charged with the offences of:

DCP Jones in his affidavit states further that the matter in relation to these charges is to be taken up in the Magistrates' Court on 3 ^rd June 2024.

• (a) “ Conspiracy to land an aircraft without permission of the Minister responsible for Civil Aviation” and

• (b) “ Abetment of the importation of controlled drugs”.

10 The claimants in their statement of claim and DCP Jones in his affidavit state that in terms of Section 29(4) of the Misuse of Drugs Act, the police had made an application in the Magistrates' Court at San Ignacio Town, to forfeit all three (3) vehicles that had been seized. That section reads as follows:

“29(4) Where any substance, article, vehicle, vessel, boat, aircraft or any other means of conveyance of whatever description is seized and detained by a member of the Belize Police Department under section 25(2)(c), a magistrate shall, upon the written application by the Commissioner of Police, made after the expiry of 30 days, inquire into the circumstances in which such substance, article, vehicle, vessel, boat, aircraft or other means of conveyance of whatever description was seized and detained and the Magistrate shall determine whether or not an offence against this Act has been committed in respect of it and whether or not it was used or employed in the commission of any such offence; and if the magistrate so determines, such substance, article, vehicle, vessel, aircraft or any other means of conveyance of whatever description shall be forfeited”. [Emphasis added]

The Magistrate by Order dated 23 ^rd January 2021, denied and dismissed that application by the BPD for forfeiture of the vehicles. The vehicles continued to be detained as productions in the case against the five (5) persons and Mr. Penner, referred to above.

Submissions of Parties

11 Learned counsel for the claimants, Mr. Banner, in his submissions seized upon the fact that the Magistrate had declined to make an order under Section 29(4) of the MDA to forfeit the vehicles and therefore argued that if there was no forfeiture it followed that the vehicles were not used or employed in respect of the offence and therefore should be released.

12 Mr. Banner stated that there was no nexus between the detention of the vehicles and the charges against Saulus Penner and the five (5) others, which charges related to the abetment of the landing of an aircraft without permission and abetment of the importation of controlled drugs. He submitted that the vehicles were not necessary for those charges as the Magistrate had declined to order the forfeiture.

13 Mr. Banner also submitted that the seizure and detention of the vehicles were unlawful in the first instance as there was no court order for such seizure and detention and that the continued detention of the vehicles was unlawful, after the Magistrate had dismissed the application for forfeiture under Section 29(4) of the MDA. In support of his argument, he cited the cases of Shelly Bryan v. The Attorney General of Guyana, 2Porter and another v. Chief Constable of Merseyside Police, 3Costello v. Chief Constable Derbyshire Constabulary, 4 and Gough and another v. Chief Constable West Midland Police.5

14 In regard to the strikeout application, Mr. Banner submitted that for the foregoing reasons of unlawful detention, the application for constitutional relief was not an...