The Village Council of Cotton Tree v The Acting Chief Justice of Belize

• Jurisdiction: Belize
• Judge: Madam Justice Sonya Young
• Judgment Date: 16 February 2021
• Docket Number: CLAIM NO. 435 OF 2020
• Court: Supreme Court (Belize)

THE SUPREME COURT OF BELIZE, A.D., 2020

Before the Honourable Madam Justice Sonya Young

CLAIM NO. 435 OF 2020

Between

The Village Council of Cotton Tree

Claimant

and

The Acting Chief Justice of Belize

1 ^st Defendant

The Attorney General

2 ^nd Defendant

Appearances:

Mr. Andrew Marshalleck, Counsel for the Claimant.

Mr. Fred Lumore, Counsel for the 1 ^st Defendant.

Mrs. Samantha Matute-Tucker, Counsel for the 2 ^nd Defendant.

KEYWORDS: Constitution — Right to a Fair Trial — Judicial Delay — Judgment not Delivered by Chief Justice who has Demitted Office — Subsequent Delay in Distribution of the Matter by Acting Chief Justice — Application for Acting Chief Justice to be Removed as a Party — Absolute Exemption or Immunity from Civil Liability — Execution of Judicial Function — Administrative Function — Independence of the Judiciary — Supremacy of the Constitution — Correct Party to be Named — Costs

1 This is a decision on an application by the Acting Chief Justice of Belize for removal as a party to this Claim on the ground of judicial immunity from all civil liability for acts done by her in the execution of her judicial function.

2 The substantive Claim concerns a judgment reserved on the 22 ^nd July, 2015, by Chief Justice Kenneth Benjamin, as he then was, who retired and demitted office prior to delivery. The Claim alleges that even after Chief Justice Benjamin demitted office and an acting Chief Justice was appointed, no arrangements were made by either Defendant for a decision to be delivered.

3 The Claimant (The Village Council) seeks relief under the Belizean Constitution for the alleged denial of its right to a fair hearing within a reasonable time as mandated by section 6(7):

“(7) Any court or other authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial: and where proceedings for such a determination are institution by any person before such a court or other authority, the cause shall be given a fair hearing within a reasonable time.”

4 The redress claimed includes a declaration “that the failure of the Chief Justice Benjamin to deliver and the Defendants to make any arrangements whatsoever for the delivery of a decision in Claim No 221 of 2014 is in breach of the Claimant's right to a fair hearing of its civil claim within a reasonable period of time guaranteed by section 6(7) of the Belize Constitution” along with damages and costs.

5 The Acting Chief Justice prepared and filed a Defence. Subsequently, the present application was made for her removal as a party. She maintains that at all material times she exercised or performed a judicial function and as such is absolutely exempted or immune from all civil liability. This immunity she insists is integral to the independence of the judiciary. That application was stated as being without prejudice to the filing of the Defence.

6 The Issues:

• 1. Whether judicial immunity from suit extends to protect a judge who is alleged to have breached fundamental rights by way of omission in an administrative capacity?

• 2. If any such immunity exists, whether it is waived by the filing of a Defence?

• 3. Whether the Acting Chief Justice is the correct party to this Claim?

Whether judicial immunity from suit extends to protect a judge who is alleged to have breached fundamental rights by way of omission in an administrative capacity:

The Applicant's Submissions:

7 The Applicant assures the Court of its jurisdiction to consider the application in accordance with Supreme Court Civil Procedure Rules ( CPR) 19.3:

“19.3 (1) The court may add, substitute or remove a party on, or without an, application.

(2) An application for permission to add, substitute or remove a party may be made by -

(a) an existing party;

(6) where the court makes an order for the removal addition or substitution of a party, it must consider whether to give consequential directions…”

8 Senior Counsel for the Applicant also relied on CPR 56.12(2)(b):

“(1) Wherever practicable, any procedural application during a claim for an administrative order must be made to the judge who dealt with the first hearing unless that judge orders otherwise.

(2) Without limiting the generality of Rule 56.12 (1), that Rule applies in respect of proceedings -

(b) to take preliminary objections on any matter.”

9 Finally, he sought, if necessary, to invoke the Court's inherent jurisdiction; a power which he accepted was to be used sparingly and only in clear cases. He relied on the definition of this extraordinary power in Montreal Trust Co. et al v Churchill Forest Industries Manitoba Ltd (1971) 21 DLR (3D) 75 at page 81 “… as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.”

10 The reason for judicial immunity was then highlighted. He discussed the doctrine of the separation of powers and that the judiciary, because of its function of adjudicating between the state and individuals, ought to be the most separate and independent. Halsbury's Laws of England 4th ed (Re-issue) Vol 8(2) paragraph 301 states that “the judiciary comes closest to being separate and independent.” Paragraph 303 confirms that the independence of the judiciary is essential to the rule of law and to the continuance of its own authority and legitimacy.

11 Senior Counsel then presented three (3) separate means by which the judiciary ought to be absolutely immune from suit in the discharge of their judicial function.

12 He drew the Court's attention to section 41 of the Supreme Court of Judicature Act Cap 91, which details the distribution of court business before the Court by the Chief Justice:

“(1) Subject to the provisions of Part 111, the Chief Justice may determine the distribution of the business before the Court among the judges thereof, and may assign any judicial duty to any judge or judges.

(2) The Registrar shall as early as practicable after the first day of every month, lay before the Chief Magistrate a list of all causes and proceedings whatever pending in the Court.”

13 The thrust of his argument seemed to be that the exercise of this particular power was an act done by the post holder in a judicial capacity and hence at common law, it would be immune from civil action. He reminded that such an immunity is provided to secure the very independence of the judiciary. He relied on Halsbury's Laws of England, 4th Ed (Reissue) Vol 8(2) pg 224 para. 304 which informed that “In order to be sure that judicial officers can discharge their functions impartially and without fear of incurring personal civil liability to anyone aggrieved by the acts, comments or decisions, they are in principle immune at common law from civil action…”

14 He then quoted what he referred to as Lord Denning's modern concept of judicial immunity from Sirros v Moore [1974] 3 ALL ER 776 at 785(b):

“. As a matter of principle the judges of superior courts have no greater claim to immunity than the judges of the lower courts. Every judge of the courts of this land — from the highest to the lowest — should be protected to the same degree, and liable to the same degree. If the reason underlying this immunity is to ensure ‘that they may be free in thought and independent in judgment’, it applies to every judge, whatever his rank. Each should be protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn the pages of his books with trembling fingers, asking himself: ‘If I do this, shall I be liable in damages?’ So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in fact. He may be ignorant in law. What he does may be outside his jurisdiction — in fact or in law — but so long as he honestly believes it to be within his jurisdiction, he should not be liable. He is not to be plagued with allegations of malice or ill-will or bias or anything of the kind. Actions based on such allegations have been struck out and will continue to be struck out. Nothing will make him liable except it be shown that he was not acting judicially, knowing that he had no jurisdiction to do it.”

15 This immunity of judicial officers on the discharge of a judicial function, he postured, was acknowledged by the Privy Council in Ramesh Lawrence Maharaj v Attorney General of Trinidad and Tobago (No. 2) (1978) 30 WIR 310. Senior Counsel then quoted Lord Diplock at 317: ‘Some of the rights and freedoms described in s 1 [sections 3 to 10 inclusive of the Belize Constitution] are of such a nature that, for contravention of them committed by anyone acting on behalf of the State or some public authority, there was already at the time of the Constitution an existing remedy, whether by statute, by prerogative writ or by an action for tort at common law…’

16 He then advanced that prior to the promulgation of the Belize Constitution the remedy available to the Village Council at common law would have been the prerogative remedies of certiorari, prohibition, mandamus and habeas corpus and not a personal action or claim against the judicial officer. A judicial officer is not liable to a claim for damages. He offered the position of the law as it was outlined in Froylan Gilharry Sr. dba Gilharry's Bus Line v Transport Board and 3 others, Court of Appeal Belize, Civil Appeal No. 32 of 2011, 20th July, 2012 (unreported):

'[67] Historically, applications for the prerogative remedies of certiorari,...