Bryan James Appellant v Attorney General Respondent [ECSC]

• Jurisdiction: St Lucia
• Judge: Blenman JA,Louise Esther Blenman,Justice of Appeal
• Judgment Date: 22 April 2014
• Judgment citation (vLex): [2014] ECSC J0422-2
• Docket Number: SLUHCVAP2013/0023
• Court: Court of Appeal (Saint Lucia)
• Date: 22 April 2014

[2014] ECSC J0422-2

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Louise Esther Blenman Justice of Appeal

SLUHCVAP2013/0023

Between:

Bryan James

Appellant

and

The Attorney General

Respondent

Civil appeal — Proper party to institute proceedings against in claims involving public officials — Attorney General substituted as defendant in place of Comptroller of Customs — Article 28, Code of Civil Procedure, Cap. 243 — Whether notice of suit not having been served on Attorney General fatal to claim — Whether claim prescribed by virtue of article 2122(2) of Civil Code of Saint Lucia, Cap. 4.01

The appellant filed a claim against the Comptroller of Customs on 11^th June 2012 in which he alleged that on 14^th October 2009, customs officers unlawfully entered his premises and seized and removed documents and a computer that belonged to him. On 25^th October 2012 the appellant filed an amended claim, in which the Attorney General was substituted in place of the Comptroller of Customs as the defendant. The appellant claimed, inter alia, that the customs officers having unlawfully entered his property, acting outside the scope of the Customs (Control and Management) Act, had violated his rights to his property. He sought a number of reliefs, including damages. The appellant also filed an application to strike out the Attorney General's defence. The Attorney General filed an application to strike out the appellant's amended claim on the basis that the appellant had failed to comply with article 28 of the Code of Civil Procedure since he did not serve the Attorney General with notice of the suit, and also on the basis that the claim was prescribed by virtue of article 2122(2) of the Civil Code of Saint Lucia. The learned master found in favour of the respondent and struck out the appellant's amended claim. The appellant appealed the learned master's decision.

Held: dismissing the appeal and awarding the Attorney General the costs which were ordered in the court below, and on appeal, two thirds of those costs, that:

• 1. The wording of article 28 of the Code of Civil Procedure1 is clear. In order to bring a suit against a public officer for damages, a claimant must serve notice of the suit on the public officer personally, or at his domicile. It will not suffice to instead serve the notice on another public officer who is not a proper party to the action.

  Castillo v Corozal Town Board and Another (1983) 37 WIR 86 applied; Peter Clarke v The Attorney General et al Saint Lucia High Court Claim No. SLUHCV1999/0475 (delivered 19th April 2004, unreported) cited with approval.

• 2. As a general rule, public officials are not suable in their official capacities in relation to acts or omissions that occur in the course of their duties. Pursuant to section 13(2) of the Crown Proceedings Act, the Attorney General is the proper party to all such suits. Proceedings against the Crown must be instituted against the Attorney General.

• 3. There is a clear distinction to be made between the situation where a claim is prescribed and one where the limitation period has expired. When a claim is prescribed, not only is the right to bring the claim extinguished, but the remedy is also extinguished. Based on the conjoint effect of articles 2122(2) and 2129 of the Civil Code of Saint Lucia2, the present claim became prescribed on 14^th October 2012 and thus, it was not possible for the appellant to bring a claim after that date.

  Norman Walcott v Moses Serieux Saint Lucia High Court Civil Appeal SLUHCVAP1975/0002 (delivered 20th October 1975, unreported) and Michele Stephenson et al v Lambert James-Soomer Saint Lucia High Court Claim Nos. SLUHCV2003/0138 and SLUHCV2003/0453 (delivered 19th April 2004, unreported) cited with approval.

Blenman JA

1 This is an appeal by Mr. Bryan James against the decision of the learned Master V. Georgis Taylor-Alexander dated 10^th October 2013 in which she struck out his claim for damages against the Attorney General and ordered him to pay costs. The bases upon which the learned master struck out his claim are that:

• (a) he had failed to comply with article 28 of theCode of Civil Procedure;3 and

• (b) the claim, having been brought three years after the cause of action arose, is prescribed as being in violation of article 2122(2) of theCivil Code of Saint Lucia.4

2 Mr. James, being dissatisfied with the decision of the learned master, obtained leave of this court to appeal against the decision. In pursuance of the leave that was granted, he has filed this appeal and seeks to impugn the decision of the learned master to strike out his amended claim and to order costs against him.

3 I propose now to briefly examine the background with a view to providing the context to this appeal.

Background

4 Mr. James is an Associate of a company that imports used and reconditioned vehicles into Saint Lucia. Also, he is the owner of a private dwelling house situate at Balembouche, in the quarter of Choiseul, Saint Lucia. On 11^th June 2012, he filed a claim against the "Comptroller of Customs and Excise Department" in which he alleged that on 14^th October 2009, customs officers unlawfully entered his premises and seized and removed documents and a computer that belonged to him.

5 On 25^th October 2012, Mr. James filed an amended claim in which the Attorney General was substituted in place of the Comptroller of Customs and Excise Department ("the Comptroller of Customs") as the defendant. The amended claim was supported by an amended statement of claim of even date. In the amended claim, Mr. James alleged that customs officers having unlawfully entered his property, acted outside the scope of the Customs (Control and Management) Act.5 He claimed that by so doing the customs officers violated his rights to his property and he sought a number of reliefs including damages. He also alleged that the customs officers acted in bad faith. Also, he stated that on 2^nd April 2012, he gave notice to the Comptroller of Customs, of his notice to file suit. He accepted that the goods were returned to him in March 2011.

6 In defence to the amended claim, the Attorney General admitted that customs officers entered Mr. James's premises on 14^th October 2009 but asserted that the entry was lawful. The Attorney General also asserted that the items that the customs officers seized were lawfully taken. Further, in the defence to the amended claim, the Attorney General asserted that Mr. James failed to comply with article 28 of the Code of Civil Procedure since he did not serve her with notice of the suit. The Attorney General also stated that the actions of which Mr. James complained occurred on 14^th October 2009 and since the amended claim was filed and served on 25^th October 2012 it was prescribed by virtue of article 2122(2) of the Civil Code of Saint Lucia.

7 The Attorney General's defence led Mr. James to file an application to strike out the defence on the basis that it disclosed no reasonable basis for defending the amended claim. He also sought summary judgment.

8 The Attorney General also filed an application to strike out Mr. James's amended claim on the basis that he had failed to comply with article 28 of theCode of Civil

Procedure and breached article 2122(2) of the Civil Code of Saint Lucia. The Attorney General filed an affidavit in support of the application in which she indicated that she had not been served with notice of the suit.

9 The learned master having heard the two applications struck out Mr. James's amended claim on the bases indicated earlier. He has appealed against the Master's decision.

10 I turn now to address the grounds of appeal.

Grounds of Appeal

11 Mr. James is aggrieved by the learned master's decision and challenges her conclusions on the grounds that: (a) the learned master erred in law by holding that he had failed to comply with article 28 of theCode of Civil Procedure, (b) the learned master misdirected herself in law and erred by ruling that his amended claim is prescribed in accordance with article 2124 of the Civil Code of Saint Lucia.

12 It bears noting that in her written judgment the learned master ruled that Mr. James' amended claim was prescribed since it was brought in excess of three years after the cause of action arose and that this was in breach of article 2122(2) of theCivil Code of Saint Lucia.

Ground 1

The learned master misdirected herself and therefore erred in law by ruling that the appellant failed to comply with article 28 of the Code of Civil Procedure.

13 Learned counsel Mr. Horace Fraser submitted that Mr. James in his amended statement of claim had clearly indicated that on 2^nd April 2012 he had served notice of the suit on the Comptroller of Customs. Mr. Fraser therefore argued that the learned master clearly got it wrong since notice of the suit was served in compliance with article 28 of the Code of Civil Procedure. Mr. Fraser argued that the Comptroller of Customs is the public officer who had committed the tort and therefore service on him was proper.

14 Learned Senior Crown Counsel Mr. Deale Lee referred the Court to article 28 of theCode of Civil Procedure which stipulates that:

"No public officer, or other person fulfilling a public duty or function, can be sued for damages by reason of or any act done by him in the exercise of his functions, nor can any judgment be rendered against him, unless notice of such suit has been given him at least one month before the issuing of the writ of summons.

"Such notice must be in writing, it must specify the grounds of the action, must be served upon him personally, or at his domicile, and must state the name and residence of the [claimant]."

Senior Crown Counsel Mr. Lee submitted the wording of the article 28 is very clear and that notice of the suit ought to have been served on the Attorney General and...