Philemond Alexander v Andrea Alexander
| Jurisdiction | St Lucia |
| Judge | Cenac-Phulgence J |
| Judgment Date | 08 November 2018 |
| Neutral Citation | LC 2018 HC 43 |
| Docket Number | SLUHCV2011/1143 SLUHCV2012/0532 Consolidated With: SLUHCV2012/0542 |
| Court | High Court (Saint Lucia) |
| Date | 08 November 2018 |
In The High Court Of Justice
The Hon. Mde. Justice Kimberly Cenac-Phulgence High Court Judge
SLUHCV2011/1143
Consolidated With: SLUHCV2011/1148
SLUHCV2012/0532
Consolidated With: SLUHCV2012/0542
Mr. Horace Fraser for the Claimants
Mr. George F. Charlemagne with Mr. Kurt Thomas for the Defendant
This judgment deals with four claims brought by different claimants against the Attorney General. They all concern the same issues. The two claims brought by Curtis Hudson (“Hudson”) and Fast Kaz Auto Supplies (“Fast Kaz”) will be referred to as the Fast Kaz Claims and the two brought by Bryan James (“James”) and James Enterprises Limited (“James Enterprises”) will be referred to as the James Claims. The trial in this matter took place on 26 th October and 8 th November 2017. On 8 th November 2017, the Court reserved its decision pending receipt of submissions which were filed by the defendant and the claimant on 27 th and 28 th November 2017 respectively.
Hudson is a businessman who operates a company by the name of Fast Kaz Auto Supplies Limited which is in the business of importing and selling vehicle spare parts, vehicle body shells and used vehicles and assembling and selling vehicles. Hudson is also the owner of private property situate at La Resource in Vieux Fort together with his wife.
In July 2009, Fast Kaz imported a container from Japan which contained four vehicle body shells, engines and other parts. The container was cleared and duties were paid to the Customs Department on 16 th September 2009.
On 15 th October 2009, a team of officers from the Customs Department entered the private property of Hudson and seized, removed and detained documents belonging to him. At the premises of Fast Kaz, the officers seized and detained three vehicles one of which was a Mazda Familia motor vehicle registration number PG5473 (“the Mazda vehicle”) which belonged to Hudson. That vehicle Hudson averred was not locally assembled nor did it have any connection with the container which had been imported by Fast Kaz. The officers also seized and detained a vehicle which had already been sold to a customer. After several attempts to resolve the matter of the seizure, the Mazda vehicle was finally released by Customs on 11 th July 2010, some nine months later. Fast Kaz claimed that this release was only as a result of the World Trade Organization's Regulations (“WTO Regulations”) having been brought to the attention of the Comptroller. The documents however are still being detained to date.
The Fast Kaz claims alleged that the Customs acted in bad faith which resulted in loss being suffered by Hudson and Fast Kaz which virtually ceased trading. They also alleged that the Comptroller of Customs issued an illegal instrument authorising his officers to enter their premises to search, seize and detain. As a result of the actions of Customs, the Fast Kaz claimants claimed damages for trespass to property and goods (special, general and exemplary), damages for detinue, damages for breach of statutory duty, costs and interest.
James is a businessman and an associate of James Enterprises which is in the business of importing and selling used and reconditioned vehicles. The business of James Enterprises is conducted from NAPA outlets in four locations, Vieux Fort, Soufriere, John Compton Highway and Mary Ann Street. James is also the owner of private property situate at Balembouche, Choiseul. On 14 th October 2009, a team of Customs Officers entered the private property of James and seized, removed and detained documents which belonged to James. As a result, James claims that he suffered loss and claimed damages for trespass (general, exemplary/punitive), costs and interest.
From the business outlets of the James Enterprises, a team of Customs Officers seized, removed and detained four vehicles and a number of documents pertaining to the business. Several attempts were made to resolve the matter but to no avail. The vehicles were finally returned in March 2011, one year and five months later. The James claimants averred that Customs acted in bad faith in seizing and detaining their property which resulted in them suffering loss. As a result, James Enterprises claimed that it suffered loss and claimed damages for trespass (special, general, exemplary/ punitive), costs and interest.
Both the Fast Kaz and James Claims claimed that the document issued by the Comptroller of Customs authorising the search was illegal as the Comptroller had no legal authority to issue same.
In its defence of the Fast Kaz Claims, the defendant averred that based on the results of investigations conducted into the importations by Fast Kaz, customs officials had reasonable grounds to suspect or grounds to believe that Fast Kaz was involved in disassembling vehicles in Japan and then importing them into Saint Lucia as vehicle parts so as to evade payment of customs duties which is lower on vehicle parts than on a fully assembled vehicle.
The defence contended that the actions of the Comptroller and by extension the customs officers were authorised and issued pursuant to section 94(1) of the Customs (Control and Management) Act 1 (“the Act”). The defendant denied that the Customs acted in bad faith and that Fast Kaz or Hudson suffered any loss for which they can claim damages.
In relation to the James Claims, the defence contended that James was served with a “writ” under the hand of the Comptroller of Customs which authorised them to enter the premises of James to conduct a search of his property and remove any documents which related to the matter. The defence averred that all the actions of Customs officers were authorised by and taken in accordance with the provisions of the Act. In relation to the James Claims, the defence averred that the actions are prescribed by section 2124 or alternatively by section 2122 of the Civil Code. 2 The defence denied that the Customs officers acted in bad faith and averred that their actions were at all times in accordance with the Act. The defence has also denied any loss claimed and contended that the claimants are not entitled to any damages.
The issues identified are as follows:
(a) Whether the claims are prescribed? If not, then,
(b) Whether the entry of the customs officers onto the claimants' property and the seizure and detention of goods was lawful and the Comptroller of Customs had reasonable grounds to seize and/or detain property of the claimants?
(c) Whether the Comptroller of Customs breached any statutory duty?
(d) Whether the claimants are entitled to damages and if so, what should be the measure of such damages?
The actions of the Customs officers were carried out on 14 th and 15 th October 2009. The Fast Kaz and James claims were filed on 2 nd November 2011 and 12 th June 2012 respectively. The defendant pleaded that the claims are prescribed pursuant to Article 2124 of the Code. Article 2124 states:
“Actions against public officers in respect of acts done by them in good faith and in respect of their public duties are prescribed by six months.”
According to Article 2066 of the Code, good faith is presumed and it is for the claimants to prove absence of good faith, i.e. bad faith. Based on the pleadings, it cannot be disputed that both the Fast Kaz and James claims would have been filed beyond the six month period prescribed by Article 2124 unless they can show that the actions of the Comptroller of Customs through his officers were taken or done in bad faith.
In Claude Shoulette v The Attorney General 3, Wilkinson J explained that a claimant who alleges bad faith must not only provide the particulars on which such an allegation is based but must prove them. If they are not capable of supporting the allegation, the allegation itself will be struck out. Edwards J in the consolidated cases of Michael Christopher v PC 240 John Flavien et al and Tamara Barrow v PC 240 John Flavien 4 explained the effect of a pleading of bad faith in the context of Article 2124 and said this:
“Under the Civil Code, in the case of a delict, an allegation of bad faith in a statement of case against a public officer performing his public duties, serves to take the prescription period beyond the six months stipulated in the Article 2124 for bringing the claim, and effectively extend the prescription period to 3 years as stipulated by Article 2122.2. That is my interpretation of Articles 2124 and 2122.2.” 5
Counsel for the defendant, Mr. George Charlemagne (“Mr. Charlemagne”) in his closing submissions relied on the cases of St. Rose v La Fitte 6 and Cannock Chase DC v Kelly 7 to define bad faith. In the case of St. Rose v La Fitte, Floissac CJ stated that “the words good faith” are descriptive of a state of mind which has long been judicially equated to honest belief.” The words of Megaw LJ in Cannock Chase DC are also instructive. In that case the court was of the view that bad faith means dishonesty which always involves a grave charge. The court opined that it should not be treated as a synonym for an honest, though mistaken
Counsel for the claimants, Mr. Horace Fraser (“Mr. Fraser”) relied on the cases of Finney v Barreau du Quebec, 9 and Frank Roncarelli v The Honourable Maurice Duplessis 10 to define bad faith. Mr. Fraser submitted that bad faith is not limited to malice but extends to...
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