CJ Touring Service and Others v St Lucia Air and Sea Ports Authority

JurisdictionSt Lucia
CourtCourt of Appeal (Saint Lucia)
JudgeGORDON J.A.,Justice of Appeal,Hugh Rawlins
Judgment Date15 January 2007
Judgment citation (vLex)[2007] ECSC J0115-4
Docket NumberCIVIL APPEALS NO. 23 OF 2006
Date15 January 2007
[2007] ECSC J0115-4

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Michael Gordon Q.C. Justice of Appeal

The Hon. Mr. Denys Barrow S.C. Justice of Appeal

The Hon. Mr. Hugh Rawlins Justice of Appeal

CIVIL APPEALS NO. 23 OF 2006

CONSOLIDATED WITH CIVIL APPEAL NO. 24 OF 2006

Between:
(1) C. J. Touring Service
(2) West Coast Jeep & Taxi Services Ltd
(3) Nico's Touring Services Ltd
(4) New Frontier Taxi Associations
(5) T. E. Touring Services
(6) Peter Lord
(7) Emery Naitram
(8) Evergreen Passenger Transport Ltd
Appellants
and
St. Lucia Air And Sea Ports Authority
Classic Transportation Incorporated
Appellant
and
St. Lucia Air and Seaports Authority
Respondent
Appearances:

Mr. Horace Fraser for the Appellants

Mr. Hilford Deterville Q.C. with Ms. Samantha Charles for the Respondent

1

GORDON J.A. By order of this court appeals 23 and 24 of 2006 were consolidated and heard together. The essential facts in both cases are the same and the issues raised are the same.

2

By two petitions dated 23 rd August and 30 th August 2006 filed under the authority of Articles 841 and 850 of the Code of Civil Procedure the appellants sought an injunction against the respondent restraining the respondent, whether by itself, its servants or agents from interfering with or obstructing or in any manner preventing the appellants from picking up and setting down passengers at any of the airports controlled by the respondent.

3

On August 31, 2006 a judge in chambers, without hearing counsel for the respective parties made an order in the following terms:

"1. It is obligatory on the Petitioners to give notice of this legal proceedings to the Respondent pursuant to Section 90 of the Saint Lucia Air and Sea Ports Act No. 10 of 1983 prior to commencing this legal proceedings.

2. There being no documentary evidence before me that the requisite written notice has been served on the General Manager by the Petitioners or their agent, this Petition and Application for leave to file a claim for Judicial Review is barred; and the Petition and Application is dismissed without hearing counsel for the Petitioners."

4

The appellants are dissatisfied with that ruling of the trial judge and have appealed to this court. At the hearing of the appeal, there were two preliminary applications to be dealt with. The first was made by two of the appellants and was an application that the party described as "C.J. Touring Service "should be re-designated as Kervin Mitchell trading as C.J. Touring Service and that the party described as "New Frontier Taxi Associations "should be re-designated as Winston Edward trading as New Frontier Taxi Association.

5

Notwithstanding the objection by learned counsel for the respondent, I am guided by the words of Sir Dennis Byron C.J. in Saint Lucia Furnishings Limited v Saint Lucia Cooperative Bank Limited et al1 at paragraph 11 of the judgment where he said:

"The main concept in the overriding objective of the new rules set out in CPR Part 1.1 is the mandate to deal with cases justly. Shutting a litigant out through a technical breach of the rules will not always be consistent with this, because the Civil Courts are established primarily for deciding cases on their merits, not in rejecting them through procedural default."

The granting of the application by the two appellants requires an exercise of my discretion. I am of the view that the respondent would in no way be prejudiced if the application were to be granted and that such a grant would be dealing with the application justly.

6

The second application was an application by the respondent to exclude a number of pages from the record. The appellants conceded that all of the documents sought to be excluded save pages 13 – 18 inclusive should be expunged. Pages 13 to 18 were the application and affidavits in support thereof dealt with in paragraphs 4 and 5 above and in my view are properly before this court.

7

The starting point in this appeal must be section 90 of the Saint Lucia Air and Sea Ports Authority Act, No. 10 of 1983, ("the Act") which reads, so far as relevant, as follows:

"90. LIMITATION

"Where, after the commencement of this Act, any legal proceeding is commenced against the Authority for any act done in pursuance, or execution or intended execution of this Act, or regulations or of any public duty or authority imposed or conferred by this Act or any regulations, or in respect of any alleged neglect or default in the execution of this Act, such regulations or of any such duty or authority, the following provisions shall have effect despite anything contained in any enactment, that is to say—

"(a) the legal proceeding shall not be commenced until at least one month after written notice containing the particulars of the claim, and of the intention to commence legal proceeding, has been served upon the General Manager by the plaintiff or his agent;"

8

This court is not required to, and specifically avoids, comment on the behaviour of the respondent of which complaint is made by the appellant. The sole, single and narrow point is whether the learned trial judge was correct in interpreting section 90 of the Act as being sufficiently wide as to cover any proceeding against the respondent.

9

In Bryan v Lindo2, a case which came before the Court of Appeal of Jamaica, the court had to consider language in the Public Authorities Protection Act of Jamaica, the first part of section 2 of which latter act was in very similar language to the first paragraph of section 90 of the Act. In that case it was found as a fact that a soldier, the defendant, during a state of emergency, arrested the plaintiff and took him to a police station. He told the police there that the plaintiff had fired shots at him. In response to suggestions from the police the defendant started to manhandle the plaintiff, and when remarks were made by the police that the defendant was merely romping with the plaintiff the defendant fired his weapon at the plaintiff at point blank range seriously injuring him. The plaintiff sued the defendant for assault. The issue before the Jamaican Court of Appeal was whether the one year period of limitation applied to the act of the soldier. It had been found by the court of first instance that this was a case of deliberate and gratuitous shooting of the plaintiff by the defendant...

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