James Enterprises Ltd 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 J0422-3
• Date: 22 April 2014
• Court: Court of Appeal (Saint Lucia)
• Docket Number: SLUHCVAP2013/0024

[2014] ECSC J0422-3

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Louise Esther Blenman Justice of Appeal

SLUHCVAP2013/0024

Between:

James Enterprises Limited

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. A civil action against the Comptroller of Customs is therefore a nullity as it does not comply with the imperative terms of section 13(2) of the Act.

• 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 maintain the claim after that date; making a substitution of a party to the claim after it became prescribed was of no effect.

  Norman Walcott v Moses Serieux Saint Lucia High Court Civil Appeal SLUHCVAP1975/0002 (delivered 20^th 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 James Enterprises Limited ("JEL") against the decision of the learned Master V. Georgis Taylor-Alexander in which she struck out the amended claim that JEL brought against the Attorney General on the basis that JEL did not comply with article 28 of theCode of Civil Procedure3 and in any event that the claim is prescribed by article 2122 of the Civil Code of Saint Lucia.4 JEL has appealed against the decision of the master and its appeal is vigorously opposed by the Attorney General.

I turn now the address the issues that arise for determination:

Issues

• (a) whether the learned master erred in holding that JEL had not complied with article 28 of theCode of Civil Procedure and that this was fatal;

• (b) whether the learned master erred in striking out JEL's amended claim on the basis that it violated article 2122(2) of theCivil Code of Saint Lucia;

• (c) whether the learned master erred in awarding costs to the Attorney General.

Issues

Background

3 JEL is a company that is involved in the business of importing used and reconditioned vehicles into Saint Lucia. It has several business places.

4 The Customs and Excise Department, acting in pursuance of theCustoms (Control and Management) Act,5 is responsible for collecting revenue and duties

levied on goods imported into Saint Lucia. The Attorney General is sued as the representative of Crown pursuant to section 13(2) Crown Proceedings Act.6

5 On 12^th June 2012, JEL filed a fixed date claim together with a statement of claim against the Comptroller of Customs and Excise Department ("the Comptroller of Customs") seeking damages for unlawful trespass to its property and goods, causing loss to business by unlawful means and breach of statutory duty for the unlawful actions committed by the customs officers. In the statement of claim it was alleged that on 14^th October 2009, a team of officers from the Customs Department unlawfully trespassed on JEL's property and unlawfully seized, removed and detained four vehicles and a number of its documents. JEL alleged that the vehicles were unlawfully detained for a long period and deteriorated as a consequence. It further alleged that it suffered damage and other losses due to the actions of the customs officers which were executed in bad faith.

6 On 25^th October 2012, JEL filed an amended claim form together with an amended statement of claim in which the Attorney General was named as the defendant instead of the Comptroller of Customs. In the amended claim, which had a statement of claim in support, it was alleged that on 14^th October 2009, a team of customs officers unlawfully entered its business place and thereby trespassed on its property. In the amended statement of claim the company also complained that on the same day the Customs officers unlawfully seized four (4) vehicles and a number of documents that belonged to the company. It alleged that the unlawful detention of the vehicles caused them to depreciate and that it suffered losses and damage as a consequence.

7 On 11^th November 2009, JEL gave the Customs Department notice of its claim against forfeiture. The customs officers finally returned the vehicles to JEL in March 2011, without pressing any charges.

8 The Attorney General, in defence, admitted that the customs officers on 14^th October 2009, entered JEL's business place. The Attorney General took issue with the allegation that the customs officers had entered JEL's business place unlawfully. To the contrary, it was asserted that the customs officers acting pursuant to section 94(1) of the Customs (Control and Management) Act had lawfully entered the premises in order to carry out investigations in relation to possible breaches of the Act. During the course of the investigations the officers seized four (4) motor vehicles which they formed the view were liable to forfeiture. In addition to denying that the vehicles unlawfully seized, the Attorney General denied that the customs officers acted in bad faith when they seized and detained the vehicles.

9 More importantly, in defence, the Attorney General contended that the amended claim was prescribed by virtue of section 2122(2) of theCivil Code of Saint Lucia. The Attorney General maintained that no action could have been brought in relation to the alleged unlawful acts which allegedly took place on 14^th October 2009 since three years had elapsed since the alleged torts or delicts had occurred.

10 Further and in defence the Attorney General denied that JEL suffered any losses as alleged or at all.

11 In addition, the Attorney General complained that JEL had failed to comply with the mandatory statutory requirement of article 28 of theCode of Civil Procedure. This was fatal to the instituting of the company's claim.

The Applications to Strike Out

12 Two applications to strike out were filed. Indeed, by notice of application filed on 22^nd November 2012, JEL applied to strike out the defence on the ground that it was doomed to fail since the Attorney General had no reasonable ground for defending the claim. JEL also sought an order for judgment in relation to the issue of liability with damages to be assessed. The application was supported by an affidavit deposed to by Mr. Byran James who is a director of the company. By notice of application filed on 23^rd November 2012 the Attorney General applied for an order that JEL's amended claim be struck out on the bases that: (a) it was filed on 25^th October 2012 and was in relation to an alleged incident which occurred on 14^th October 2009. Therefore, the amended claim has been filed in contravention of article 2122 of the Civil Code of Saint Lucia and therefore the Court had no jurisdiction to entertain the claim; (b) JEL has not served a notice of intended suit on the Attorney General as required by article 28 of the Code of Civil Procedure. This failure to comply with article 28 is...