Vernon v Castro

• Jurisdiction: Belize
• Judge: Benjamin, C.J.
• Judgment Date: 19 May 2014
• Court: Supreme Court (Belize)
• Docket Number: 86 of 2014
• Date: 19 May 2014

Supreme Court

Benjamin, C.J.

86 of 2014

Vernon

and

Castro

Appearances:

Mr. Arthur Saldivar and Mr. Phillip Palacio for the claimant.

Mr. Denys Barrow, SC and Ms. Naima Barrow for the defendant.

Civil practice and procedure - Striking out — Abuse of process — Whether Part 56 of the Civil Procedure Rules gave the claimant a cause of action.

Constitutional Law - Whether Section 121(1) of the Belize Constitution was merely declaratory of the conduct expected of the functionaries listed within.

Benjamin, C.J.

1 By a Fixed Date Claim Form supported by Affidavit filed on February 26, 2014, the claimant, Mr. Trevor Vernon, claims declaratory relief pursuant to Rule 56.7(1)(c) of the Supreme Court (Civil Procedure) Rules (“CPR”) against the defendant, Mr. Edmond Castro, a member of the House of Representatives of Belize. The following reliefs were sought:

• “1. A Declaration that the first defendant is in breach of section 121(1)(a) of the Belize Constitution Act, Cap. 4 of the Substantive Laws of Belize, in that he has placed himself in a position in which he has a conflict of interest;

• 2. A Declaration that the first defendant is in breach of section 121(1)(c) of the Belize Constitution Act, Cap. 4 of the Substantive Laws of Belize, in that he has used his office for private gain;

• 3. A Declaration that the first defendant is in breach of section 121(1)(e) of the Belize Constitution Act, Cap. 4 of the Substantive Laws of Belize, in that he has allowed his integrity to be called into question;

• 4. Further or other relief which the Court doth deem just.”

THE CLAIM

2 The crux of the claimant's case can be found in paragraphs 5 to 18 of his sworn Affidavit as follows:

• “5. He was appointed as a Minister of State in the Ministry of Works and Transport but was conferred ministerial authority by the Prime Minister of Belize Honourable Dean Barrow over the ministry's portfolio of Transport. He also assumed responsible for the portfolio of Civil Aviation.

• 6. The Ministry's responsibilities are for Works (Bridge Construction and Maintenance, Public Works and Road Construction and Maintenance); Transport (Belize Ports Authority, Licensing of Vehicles, Postal Services, Ports and Harbours, Salvaging Wrecks, Traffic and Transport); Civil Aviation.

• 7. The Belize Airports Authority (hereinafter referred to as “the Authority”) is a statutory body established by law and is governed by a Board of Directors appointed by the Minister responsible for Civil Aviation, who was at the material time, the Honourable Rene Montero.

• 8. The Authority's duties are to (a) administer, control and manage prescribed airports and any other property vested in it; (b) provide and maintain such services and facilities as are in it opinion necessary or desirable for the efficient operation of the prescribed airports or as the Minister may require; and to provide rescue and firefighting equipment and services at prescribed airports.

• 9. In or around April 2003, the Authority caused to be issued a cheque for the sum of Four Thousand Dollars ($4,000.00) to the first defendant purportedly to assist with funeral expenses for his deceased mother. A copy of the cheque has been exhibited as “TV1”.

• 10. The Authority additionally issued another cheque in the sum of Three Thousand Three Hundred Thirty Seven Dollars and Fifty Cents ($3,337.50) to David Coye Funeral Home and Parlour also as assistance to the First defendant with the burial of his mother. A copy of the cheque has been exhibited as “TV2”.

• 11. A further cheque in the sum of Five Thousand One Hundred Fifty Six Dollars and Fifty-Six Cents ($5,156.50) dated May 10, 2013 was issued to the first defendant from the opening account of the Authority for further expenses related to his mother's funeral. A copy of the cheque has been exhibited as “TV3”.

• 12. In or around December 2012, the first defendant caused to be issued yet another cheque, this time in the sum of One Thousand Nine Hundred and Thirty-Seven Dollars ($1,937.00) from the Authority's operation account to Ordonez Bike Shop as assistance for his cycling team, the Clear the Landing Cycling Team. This cycling team is owned by the first defendant and his sons are members of his team. A copy of the cheque has been exhibited as “TV4”.

• 13. The Authority also issued cheques to Bowen & Bowen Limited manufacturers for soft drinks and alcoholic beverages in the sum of $5,000.00 and $5,321.66 respectively as payments for two political social functions hosted by the first defendant in two separate villages of which forms a part of the Belize Rural North electoral constituency. Refer to “TV1”.

• 14. Cheques were also issued to the first defendant's secretary for his political office, Erlean Baptist in the sums of $200.00 and $500.00 respectively; to his official driver Norman Middleton in the sum of $300.00 (Refer to “TV3”); to his campaigners, Jacqueline Cassasola in the sum of $600.00; Maureen Olivera in the sum of $200.00 (Refer to “TV6”) Sharon Budd in the sum of $150.00; Melanie Revers in the sums of $500.00 and $600.00; and Zellie Tillet in the sum of $1,000.00. Copies of these cheques have been exhibited as “TV5” “TV6” “TV7” “TV9” “TV10”.

• 15. I have been informed and do verily believe that the monies issued by the Authority to the first defendant and on his behalf have nothing to do with the Authority whose functions and duties are established by law.

• 16. I am also of the belief that the Authority was induced to do acts and things mentioned in paragraphs 9, 10, 11, 12, and 14 thereof and each of them by undue influence of the first defendant and under his direction, and pursuant to the faith, trust and confidence the Authority reposed in the first defendant but without any separate or independent advice and without the consideration or independent advice and without the consideration of the reasons for or the effect of what it was doing.

• 17. I have also been informed and do verily believe that as an individual who is subject to Code of Conduct, as mentioned above in paragraph 5, the first defendant is not to accept a gift, the values of which exceeds the sum of Two Hundred and Fifty Dollars ($250.00).

• 18. The first defendant also has a duty by virtue of his position to ensure that he does not illegally use for his benefit or that of a third party, any property including money belonging to the Government of Belize or any statutory body or any government company or anybody providing public utilities to which he has access as a result of or in the course of the performance or his functions”.

THE APPLICATIONS BEFORE THE COURT

3 The defendant filed an Acknowledgement of Service on March 24, 2014. No Defence was filed.

4 The present proceedings are in respect of the Notices of Applications filed by the defendant on April 14, 2014 and on April 23, 2014. By Notice of Application filed on April 14, 2014, the defendant applied to the court for the claimant's claim to be struck out pursuant to Rule 26.3(1)(c) of the CPR. The said Rule empowers the Court to strike out a statement of case or part thereof where:

“… the statement of case or the part to be struck out discloses no reasonable grounds for bringing or defending a claim”.

The Notice of Application sought the following orders:

• “1. The claimant's claim against the defendant be struck out because it is wholly incapable of succeeding and amounts to an abuse of process.

• 2. The claimant's claim against the defendant be struck out because it discloses no reasonable grounds for bringing the claim.

• 3. The claimant shall not without the permission of the Court first having been obtained commence a new claim against the defendant arising out of acts which are the same or substantially the same as those relating to this claim.

• 4. The claimant shall pay the defendant's costs of this application and of the claim.”

The grounds for the application were stated as follows:

• “1 The claimant's Fixed Date Claim Form and Affidavit Statement of Claim dated the 26th February, 2014 are brought pursuant to Rule 56.7(1)(c) of the Supreme Court ( Civil Procedure) Rules, 2005.

• 2. Part 56 of the Supreme Court ( Civil Procedure) Rules, 2005 deals with applications for administrative orders but the reliefs being sought against the defendant are not administrative orders.

• 3. Rule 56.1(1) provides that

“This Part deals with applications –

• (a) For judicial review

• (b) For relief under the Constitution

• (c) For a declaration in which a party is the Crown, a court, a tribunal or any other public body; and

• (d) Where the court has power by virtue of any enactment to quash any order, scheme, certification or plan, any amendment or approval of any plan, any decision of a Minister or Government Department or any action on the part of a Minister or Government Department.”

• 4. The claimant is seeking declarations as against the defendant but he is neither the Crown, a court, a tribunal or a public body.

• 5. The Court is empowered by Rule 26.3(1)(c) of the CPR to strike out a statement of case if it appears that the statement of case discloses no reasonable ground for bringing a claim”.

[5] By Notice of Application filed on April 23, 2014, the defendant applied to the court pursuant to Rule 10.3(8) of the CPR which...