[2012] CCJ 1 (AJ) (R)
IN THE CARIBBEAN COURT OF JUSTICE
Appellate Jurisdiction
ON APPEAL FROM THE COURT OF APPEAL OF BELIZE
CCJ Appeal No CV 4 of 2011
BZ Civil Appeal No 31 of 2010
BETWEEN
DEAN BOYCE APPELLANT
AND
THE ATTORNEY GENERAL OF BELIZE
THE MINISTER OF PUBLIC UTILITIES RESPONDENTS
AND
CCJ Appeal No CV 6 of 2011
BZ Civil Appeal No 30 of 2010
BETWEEN
BRITISH CARIBBEAN BANK LIMITED APPELLANT
AND
THE ATTORNEY GENERAL OF BELIZE
THE MINISTER OF PUBLIC UTILITIES RESPONDENTS
Before The Rt Honourable Mr Justice Dennis Byron, President
And The Honourables Mr Justice Saunders, JCCJ
Mme Justice Bernard, JCCJ
Mr Justice Hayton, JCCJ
Mr Justice Anderson, JCCJ Appearances
Mr Godfrey P Smith and Ms Magali Marin Young for the Appellant in CV 4 of
2011
Mr Edward Fitzgerald, QC on the application of Fortis Energy International
(Belize) Inc to intervene in CV 4 of 2011
Mr Eamon H Courtenay, SC and Mrs Ashanti Arthurs Martin for the Appellant in
CV 6 of 2011
Mr Denys Barrow, SC, Ms Lois Young, SC and Mr Andrew Bennett for the
Respondents in CV 4 of 2011 and CV 6 of 2011
RULING
of
The President and Justices Saunders, Bernard, Hayton and Anderson
Delivered by the President
The Right Honourable Mr Justice Dennis Byron
on the 26
th
day of January 2012RULING
[1] At a Case Management Conference held on 6
th
December, 2011 this Court ordered
the parties to these appeals to file written submissions on the question whether the
appeals should be stayed. The idea of a Stay was first suggested by this Court at
the said Conference and was premised on the considerable impact on the appeal
of legislation enacted by the Belize Parliament in the days and months following
the decision of the Court of Appeal against which the appeals have been brought.
The suggestion was readily accepted by the Respondents but opposed by the
Appellants. We decided that the Appellants should be afforded an opportunity to
show cause why the appeals should not be stayed. The Respondents were also
permitted to make written submissions, in substance advancing their own reasons
in support of a Stay. Both sides were asked also to include in their submissions
their respective views on what conditions should be attached to any order for a
Stay should the Court be confirmed in its provisional view that the appeals should
indeed be stayed.
[2] We have read the very extensive submissions and accompanying affidavits filed.
As this is a mere case management decision the Court does not intend to render as
full and detailed a judgment as if we were deciding the appeal itself. But since
the matter has occasioned a tremendous degree of contention, and in fairness to
the able and very thorough submissions that have been advanced, the Court
considers that it should articulate the different voices that have influenced its
deliberations and outline, even if only briefly, the reasons for its decision.
[3] The background to the issue can be quickly stated. The Government of Belize
had acquired the Appellants’ interests in certain property with effect from 25
th
August 2009. In the courts below, the Appellants sought declarations that the
2009 legislation was unconstitutional and void and also sought further
consequential relief which included (a) such other declarations, orders and
directions as were appropriate for the purpose of enforcing or securing the enforcement of the declarations of invalidity; (b) damages, including punitive
damages; (c) interest; and (d) such other relief as the Court deemed just and
equitable.
[4] The Appellants were unsuccessful in the High Court. But they prevailed before
the Court of Appeal. That court held on 24
th
June, 2010 that the 2009 legislation
was inconsistent with the Constitution and was invalid, affirming that the
Appellants had suffered an unlawful invasion of their fundamental rights
guaranteed under the Constitution of Belize. But apart from costs, the Court of
Appeal awarded no consequential relief, no submissions having been made as to
such relief, the Appellants no doubt believing that the Government would respect
all the consequences of the legislation being declared void.
[5] It did not, so the Appellants wrote to the Court of Appeal on 28
th
June, 2010
urging the Court to address the issue of consequential relief but the Court of
Appeal, no doubt considering itself functus, declined to entertain the request.
[6] The Appellants were dissatisfied. They obtained leave to appeal to this Court (a)
the question whether the Court of Appeal was right to decline to award them
consequential relief and (b) the rejection by the Court of Appeal of their
allegation of being treated in a discriminatory manner. The Respondents (the
Attorney General and the Minister of Public Utilities) did not appeal the judgment
of the Court of Appeal.
[7] Instead, after the judgment of the Court of Appeal, the Government continued its
possession and management of the property in question and on 4
th
July, 2010 the
Parliament of Belize enacted new legislation amending the legislation that had
been declared null and void by the Court of Appeal and re-acquired the property,
and on 25
th
October, 2011 by the Belize by the Belize Constitution (Eighth
Amendment) Act it amended the Constitution of Belize. This entire package of
legislation is referred to in this decision as “the 2011 legislation”. The re-acquisition was done retroactively to the date of the 2009 acquisition order, that
is, to 25
th
August 2009, presumably so that the Government could achieve what it
thought it had by the 2009 legislation.
[8] When this appeal first came before us for Special Leave, the Appellants
undertook then to file in the High Court a challenge to the validity of the 2011
legislation. The Appellants have made good on this undertaking. Claims 597 and
686 of 2011 have been filed by them challenging the constitutionality of the 2011
legislation.
[9] Despite the pendency of these claims, the Appellants now assert a right to argue
before this Court the issues raised in that challenge regarding the validity of that
legislation. They wish this Court to determine those issues as part and parcel of
their appeal. They justify this course on the basis that a stay will lead to “a
deferral” of their remedies and/or a “smothering” of those remedies “in
procedural delays and difficulties”. They submit that this Court has the
jurisdiction to adjudicate de novo on the constitutionality of the 2011 legislation.
They claim that this Court’s duty to interpret and apply the 2011 legislation must
perforce extend to determining its validity and that as a matter of good judicial
policy, and in fairness to them, this Court should seize the opportunity to rule on
the 2011 legislation so that their appeals could be determined in the light of such
ruling. They state also that given the nature of the property acquired (essentially a
telecommunications company which we refer to here as “Telemedia”), there is a
real need for expedition, indeed urgency, in hearing the appeal and, by necessary
extension, determining the challenge to the 2011 legislation. Essentially, so far as
the challenge is concerned, the Appellants seek to leap-frog the courts below and
so accelerate all the processes involved in pursuing their challenge that has been
filed in the High Court as claims numbered 597 and 686 of 2011.
[10] It is entirely understandable why the Appellants should passionately put forward
this position. They have raised powerful arguments in support of it. Again, our brevity in treating with those arguments is not a true reflection of our appreciation
of them.
[11] The indisputable fact is that the 2011 legislation, and in particular its retrospective
element, could have a devastating impact on the appeals. While we recognize the
dilemma in which the Appellants have thereby been placed, and notwithstanding
the submissions that have been made by them, the majority of us still consider
that the better course is indeed to stay the appeals pending the outcome of the
challenge in the normal manner to the 2011 legislation.
[12] We start first with a few observations. Our colleague Justice Anderson has not
been able to agree with the majority and takes as his point of departure the fact
that there is extant before us a judicial decision by the Court of Appeal declaring
that certain constitutional rights of the Appellants have been infringed by the
Government, represented by the Respondents. The relevant function of this Court
must be to ensure that the Appellants have an opportunity to challenge the
decision not to award consequential relief. That opportunity is critical to the
Appellants’ right to the enjoyment of the protection of the law. He also considers
that the mere fact that the award of a timely and effective remedy may require that
this Court navigates through and takes appropriate account of legislation and a
constitutional amendment enacted by Parliament after the judicial decision in
favour of the Appellants can in no way justify a deferral of the responsibility to
make the award. Indeed, in his respectful view, these developments make the
discharge of the fundamental obligation of this Court not less but more urgent
because they implicate the most critical of all the functions of this Court, that is,
the duty to uphold the rule of law.
[13] We all agree, as the Appellants themselves readily acknowledge, that some of the
issues that are likely to emerge from the challenge to the 2011 legislation are
novel, wide ranging and of the utmost public and constitutional importance. Their
determination can potentially have a huge impact far beyond the parties to these proceedings and indeed, beyond Belize as well bearing in mind that this Court is
also the final Court of Appeal for other CARICOM States.
[14] Secondly, we have deliberated carefully on the question whether the effect of
granting a stay would be a deferral of their rights to a hearing on consequential
relief. On the one hand, Justice Anderson concludes that the order granting leave
to appeal would have given the Appellants an expectation for an expedited
hearing for this Court to consider whether or not there should have been an award
of consequential relief and if necessary to overrule the Court of Appeal by
ordering the same. In ordering special leave this Court must be taken to have
accepted that, notwithstanding the enactment of the 2011 legislation, the
Appellants had demonstrated a realistic chance that their appeal from the decision
of the Court of Appeal would succeed
1
. Accordingly, the previously made Order
granting Special Leave tends to militate against a stay of the appeal in
circumstances where the granting of special leave contained no hint or indication
that a stay would be contemplated. To stay that hearing pending the completion
of the challenges to the 2011 legislation will cause delay as the vicissitudes of
litigation may protract final adjudication as their entitlement to the protection of
the law will await the outcome of litigation over whose progress this Court has no
real control.
[15] The majority of us were persuaded that it would be premature to conclude that the
Court of Appeal neglected to decide the issues as they ought to have been
decided. Having carefully considered the case placed before it the Court of
Appeal decided not to award consequential relief. They may have been perfectly
right so to do. Or they may not have been. While we suspend judgment on that
question, the bare fact is that at this point in time, the Appellants have no right to
any particular consequential relief or to any further award. What they do have is a
right to challenge the Court of Appeal’s judgment. It is not as if specific
1
Brent Griffith v Guyana Revenue Authority and Attorney General of Guyana CCJ Application No 1 of
2006, at [22-23] per Nelson, JCCJ; Barbados Turf Club v Eugene Melnyk [2011] CCJ 14 (AJ) at [7]-[8]
per Anderson, JCCJconsequential relief, damages for example, had actually been awarded and the
2011 legislation had purported retrospectively to claw back such relief.
[16] The argument of the Appellants that in the circumstances of this case, a stay is
likely to amount to the dismissal of the appeal without a hearing, as litigation over
the 2011 legislation could overtake the present appeal, found support with Justice
Anderson. Were the challenge to the 2011 legislation to be successful the issue of
relief consequential to the Court of Appeal’s decision would be entirely overtaken
because of the retrospective nature of that legislation. But if the challenge was
unsuccessful there would be no need to consider consequential relief under the
appeal presently before us as the same would become subsumed under any
consequential relief awarded pursuant to any successful challenge to the 2011
legislation. Either way, in Justice Anderson’s view, if this Court ultimately had
to consider the validity of the 2011 legislation this appeal could not then be
revived. However, the majority of us were persuaded that this consideration
militated in favour of granting the stay, since the nature and extent of
consequential relief would precisely depend on the outcome of the challenge to
the 2011 legislation.
[17] In considering the presumption of constitutionality of the 2011 legislation Justice
Anderson considered that the primary effect of the Court of Appeal’s decision
was that the 2009 legislation was null and void. As such, the 2011 legislation
purporting to amend legislation declared null and void could not provide a
sufficient basis on which to stay the appeal.
[18] However, the majority considered that it is also trite that until and unless set aside,
the 2011 legislation is valid and must be given full force and effect. Its validity is
to be presumed. To stay the appeal pending a determination of the filed challenge
is, therefore, not to deny the Appellants a right to effective redress but to permit
them the time and space to challenge the validity of the 2011 legislation via High
Court claims 597 and 686 of 2011. The stay will ultimately be removed and the substantive appeal considered and heard after it is clear whether and if so to what
extent that challenge succeeds.
[19] We have examined the several authorities cited by the Appellants. They do
support the notion advanced by the Appellants that where a law changes during
the period between a hearing and an appeal, the appellate court must consider the
law as it stands as at the date of the hearing of the appeal, especially where that
law is applied retrospectively.
[20] But neither that proposition nor the cases cited in support has caused the majority
of us to alter our view that the appeals should be stayed pending a determination
of the challenge as to the very validity of the 2011 legislation. Indeed, there is a
material difference between on the one hand, “considering” a new law and on the
other, entertaining arguments in the appeal to strike down the same. In AttorneyGeneral v Vernazza
2
for example, at the appellate hearing, the retrospective
legislation passed was properly regarded as being effectual. That was not a case
where the validity of the retrospective legislation was being challenged. Lord
Denning’s statement at page 978 of the relevant report is interesting. He states
that an appellate court can give effect to a retrospective Act passed in the interval
since the case at first instance. The same principle is to be found in Quilter v
Mapleson
3
. In that case, the law having been changed during the pendency of the
case, the Court of Appeal was entitled to decide the appeal on the basis of the
validity and efficacy of the new law. This approach is also demonstrated in
Zainal bin Hashim v Government of Malaysia
4
.
[21] We have not been referred to a case where an appeal has embraced or hinged
upon a challenge to the validity of legislation which was not in existence at the
time of the decision appealed from. Bowe and another v The Queen
5
and Reyes v
2
[1960] AC 965
3
(1882) 9 QBD 672
4
[1980] AC 734 (PC)
5
[2006] 1 WLR 1623The Queen
6
were not cases where new legislation was being considered. In those
cases novel constitutional points were raised in relation to pre-existing law which
the courts below could and, with hindsight, should have interpreted differently.
[22] The Trinidadian case of The State v Brad Boyce
7
is about a new constitutional
issue arising for the first time out of newly enacted legislation. The validity of the
new legislation was being challenged for the first time. Brad Boyce was indicted
for murder on 19
th
September, 1996. A new law permitting the State to appeal
against acquittals in certain instances came into force on 29
th
October, 1996.
Boyce was acquitted on 27
th
July, 1998. The State appealed pursuant to the new
law. Boyce argued on appeal that (i) since he was indicted before the new law
came into force the Court of Appeal could not permit the State’s appeal and that
(ii) in any event the law on which the appeal hinged was unconstitutional. The
Court of Appeal held that it had jurisdiction to hear the challenge to the
constitutionality of the new law.
[23] Brad Boyce does not really assist the Appellants. The case is distinguishable for
two reasons. Firstly, the new law was in existence before the acquittal. Secondly,
the State’s entire appeal, indeed its very right of appeal, was founded on the
validity of the new law. It was impossible to sever the constitutionality of the
new law from the conduct of the appellate proceedings.
[24] Without delving into and thus commenting one way or another on the issue of
whether we possess jurisdiction to do what the Appellants have asked of us, we
are prepared to agree with the Appellants that fundamentally, the decision to stay
or not stay these appeals is a matter of judicial policy. The operation of that
policy requires us to have full regard to the nature of the legal and constitutional
challenge being made to the 2011 legislation discussed above briefly at [11] and
[13]. Against that background, we consider that before this Court rules on the
6
[2002] 2 AC 259
7
Criminal Appeal No 89 of 1998challenge it would be more appropriate first to hear the views of the courts below.
The circumstance that, as compared with the London based Privy Council, it
cannot be said either that we are “a distant court” or that we lack “familiarity with
local conditions” is quite beside the point. The views of the judges below in the
light of the continuous refinement of counsel’s submissions as the case progresses
through the system as well as any learned comment in academic journals are not
to be discounted. These opinions constitute vital material helping to inform and
shape the views of a final court especially where the matter at hand is as described
at [13].
[25] Moreover, the challenge to the 2009 legislation occasioned reams of affidavit
evidence much of which was conflicting. There is every possibility that the
challenge to the 2011 legislation will also produce a like amount of evidence and
will similarly require the courts to make important findings of fact. We are not
convinced about the Appellants’ assurances to the contrary. Even if we were
persuaded that we had jurisdiction, as the final court of Belize, we are loathe to
undertake such an exercise as if we are a court of first instance.
[26] We are sympathetic to the Appellants’ desire to have their filed appeals heard, and
dealt with expeditiously, given the subject matter of the property acquired and all
the other circumstances that attend this case.
[27] The challenge to the 2011 legislation that has been filed and is pending is
premised on a variety of arguments including the submission that the 2011
legislation is bad on its face. The majority of us have considered whether it is at
all possible to reach some middle way where the appeals can be heard without a
full consideration and determination of the 2011 legislation but we could find
none. Neither party has indicated the possibility of or any interest in or desire for
any such middle ground. More importantly, we do not consider it wise or
appropriate to segregate, for the purpose of determining its discrete validity, one
aspect of the 2011 legislation from the remainder that must then be adjudicated upon by the Belize courts hopefully later this year. We consider it likely that in
attempting to deal with restricted issues within larger issues it will be difficult to
avoid giving rise to implications which could embarrass the courts below and
prejudice the fair hearing of claims 597 and 686 of 2011. On all the issues we
consider it most important to have the views of the judges of Belize as
emphasized already in [24] above and we consider it unnecessary and
inappropriate to go into the issue now of whether particular litigation is
necessarily bad on its face. This is for the Belize courts to rule on before any
appeal comes to us.
[28] Having decided to stay the appeals, we turn our attention now to the conditions
on which the Stay must operate. Justice Anderson would not stay, but rather
would proceed to hear these appeals with a view to considering the grant of such
consequential relief as the Appellants can show should have been awarded by the
Court of Appeal pursuant to its decision dated 24
th
June 2011.
[29] On 16
th
August 2011 when special leave to appeal to this Court was granted, in
contemplation of the timely hearing of these appeals the Court gave certain
directions and issued a number of orders. Among the latter we had made orders
(a) restraining the Respondents from implementing the 2009 legislation which the
Court of Appeal had invalidated; (b) permitting the Telemedia Board of Directors
appointed pursuant to the 2011 legislation (“the 2011 Board”) to carry on the day
to day management and business of Telemedia but (c) restraining the Respondents
and the 2011 Board from taking any further steps to sell, transfer, charge, pledge,
or grant any option or other rights over, or otherwise dispose of any of the
remaining shares of Telemedia. Those orders were stated to last until the hearing
and determination of the appeals or until further order. Since there is no question
now of the Government implementing the 2009 legislation, we see no need for
there to be an injunction restraining the Government from implementing the same.[30] The Respondents had earlier undertaken by their Attorney-at-Law “to keep the
already acquired proceeds from the sale of all the acquired shares in [Telemedia]
separate and intact in accounts held by or for the benefit of the Government of
Belize in the Central Bank of Belize or commercial banks until the hearing and
determination by the Caribbean Court of Justice of the substantive appeal from
the decision of the Court of Appeal of Belize in Civil Appeal No 30 of 2010 and
Civil Appeal No 31 of 2010”.
[31] Those orders and the undertaking given must naturally be re-visited since the
period throughout which they will have effect will now be considerably longer
than was originally envisaged. It was for that reason that at the Case Management
Conference we also invited the parties to make submissions to this end. In all the
circumstances, and after taking note of the submissions filed and the
accompanying affidavits, we consider it appropriate that the Appeals should be
stayed upon the Respondents undertaking (a) to cooperate with the Appellants in
having Claims numbered 597 and 686 of 2011 heard in a timely fashion and (b) to
keep the proceeds of sale of any of the acquired shares in Belize
Telecommunications Limited separate and intact in accounts held by or for the
benefit of the Government of Belize in the Central Bank of Belize or commercial
banks provided that the proceeds may be used for the purpose only of paying
compensation to those shareholders whose shares were acquired pursuant to a
written agreement with the relevant shareholder or pursuant to an order of the
Supreme Court of Belize.
[32] The second of these undertakings must subsist until the hearing and determination
by this Court of the substantive appeal from the decision of the Court of Appeal
of Belize in Civil Appeal No 30 of 2010 and Civil Appeal No 31 of 2010 or until
further order but with liberty to each party to apply for any further orders or
directions, any such applications to be listed for hearing within one month of
being filed. For the avoidance of doubt such applications cannot extend to applications via the Respondents’ undertakings to have claims No 145 of 2011
and No 360 of 2011 stayed.
[33] The confirmation of our decision to stay these appeals pending the determination
of the challenge to the 2011 legislation effectively means that the application by
Fortis Energy International (Belize) Inc. to be added as an interested party to the
appeals must be dismissed as that application rested entirely on the premise that
this Court would hear the appeals and encompass within the appeals the challenge
to the validity of the 2011 legislation.
[34] The Court makes no order as to Costs.
__________________________________________________
The Rt Hon Mr Justice Dennis Byron (President)
________________________________ __________________________________
The Hon Mr Justice A Saunders The Hon Mme Justice D Bernard
________________________________ ____________________________________
The Hon Mr Justice D Hayton The Hon Mr Justice W Anderson
