Saint Lucia air and Seaports Authority Appellant v [1] Leroy Mathurin [2] Wayne Albertson Respondent [ECSC]

• Jurisdiction: St Lucia
• Judge: EDWARDS, J.A.,Justice of Appeal,Ola Mae Edwards,Janice George-Creque,Davidson Kelvin Baptiste
• Judgment Date: 21 February 2011
• Judgment citation (vLex): [2011] ECSC J0221-1
• Docket Number: HCVAP 2008/035
• Court: Court of Appeal (Saint Lucia)
• Date: 21 February 2011

[2011] ECSC J0221-1

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mde. Janice George-Creque Justice of Appeal

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

HCVAP 2008/035

Between:

Saint Lucia air and Seaports Authority

Appellant

and

[1] Leroy Mathurin

[2] Wayne Albertson

Respondent

Civil appeal — Compensation for assault, unlawful arrest and false imprisonment — Saint Lucia Air and Sea Ports Authority Act Cap. 8.13 (Revised Laws of Saint Lucia 2001) — Saint Lucia Airport Regulations — Interpretation of Regulation 27(1)(c) of the Saint Lucia Airport Regulations — The meanings of "plying for hire", "soliciting", and "carrying on business or trade" at the airport — Power of Port Police to arrest — Enforcing directions of the Authority's General Manager — Whether Port Police can lawfully direct a transport driver collecting arriving passengers to depart from and not collect such passengers from the arrival lobby at the airport

The appellant, the Saint Lucia Air and Sea Ports Authority ("the Authority"), appealed the decision of the learned trial judge in which judgment was entered for the respondents, Leroy Mathurin and Wayne Albertson, who were both seeking compensation for assault, unlawful arrest and false imprisonment. On Friday 18^th August 2006, the respondents were arrested and detained by the appellant's Port Police at the Hewanorra International Airport, for contravening the Saint Lucia Airport Regulations ("the Regulations") and section 85(a)(iii) of their enabling Act, Saint Lucia Air and Sea Ports Authority Act ("the Act"). The complaints proffered against the respondents charged them with: (1) remaining at the arrival lobby of the Hewanorra airport after having been required by a Port Police to depart therefrom, contrary to Regulation 27(1)(c) of the Airport Regulations; and (2) without lawful excuse contravening a direction given to each respondent by the Port Police: "Do not pick up any passengers on behalf of Sandals", contrary to section 85(a)(iii) of the enabling Act Cap 8.13. These complaints had been previously dismissed in the Magistrate's Court. The learned judge concluded that the appellant's servants had acted unlawfully in arresting the respondents and awarded them each $1,200.00 for special damages and $14,000.00 for general damages, together with interest at the rate of 6% per annum from the date of the judgment until payment. The grounds of appeal essentially allege that the learned judge erred in her interpretation of the Regulations as well as in making certain findings. Regulation 27(1)(c) provides that "A person shall not at an airport —remain on an airport or on any part thereof after having been required by the Superintendent or a police officer to depart therefrom." Section 85(a) (iii) of the Act Cap. 8.13 provides that "Any person who being on any premises of the Authority … (iii) without lawful excuse contravenes any direction given by any officer authorised by the General Manager; …commits an offence and is liable on summary conviction to a fine not exceeding $2,000 or to imprisonment for a term not exceeding 6 months or to both such fine and imprisonment." The appellant's counsel contended that the respondents were engaged in taxi business, and as taxi drivers employed to C.J. Tours which was operating a business in the tourist industry, were breaching Regulation 6(1) and Regulation 15(1), as they were in the process of plying for hire from the airport without a permit and were carrying on the trade and/or business as taxi drivers at the airport without the approval of the Minister.

Held: dismissing the appeal, affirming the order of the court in relation to the damages and prescribed costs awarded to each respondent and awarding to the respondents costs in the appeal, that being two thirds of the prescribed costs in the court below, that:

• 1. The learned judge erred in holding that the heading and marginal notes of an enactment are to be used in the interpretation of the enactment and also in determining that Regulation 27 of the Regulations deals with the prevention of destruction and damage to the airport. Further, the judge erred in holding that Regulation 27(1)(c) does not apply to the lobby or checking areas of the airport as Regulation 3 states that "These Regulations apply to all persons who are at any time in any part of an airport." The scope and purpose of Regulation 27(1)(c) therefore should not be delimited to any particular category of offence.

• 2. It is essential before one could say that a vehicle was "plying for hire", first, that it should be exhibited, be on view to the public, and secondly, that it should, while on view, expressly or impliedly solicit customers in the sense of inviting the public to use it. The respondent's presence at the airport in the arrival lobby area did not amount to soliciting arriving passengers within the ordinary meaning of the word "solicit". The respondents by a previously booked arrangement were collecting the Sandals passengers in the arrival lobby at the airport so as to transport them to the Sandals Resort. Their vehicles clearly were not on view to the public expressly or impliedly for soliciting customers in the sense of inviting the public to use their vehicles.

  Cogley v Sherwood [1959] 2 All ER 313 applied.

• 3. Regulation 6 (carrying on trade or business) should be read in the context of section 73(1)(a) and (m) of the Saint Lucia Air and Sea Ports Authority Act Cap. 8.13 which speaks to business operations performed or provided at the airport; and/or connected with the airport. There is no evidence that the respondents were based or pegged at the airport to solicit fares, unlike the Southern Taxi Association members. Neither were the respondents looking for customers at the airport in order to do business or carry on any such trade therefrom.

• 4. An offence under Regulation 27(1)(c) is an arrestable summary offence by virtue of section 570 of The Criminal Code Cap 3.01 which states that a police officer may arrest without a warrant anyone who is or whom he or she, with reasonable cause, suspects to be in the act of committing or about to commit the offence. However, The Port Police at the material time could only be carrying out their duties under section 74(3)(a) of the Act Cap 8.13. Their lawful duties under these provisions were to prevent crime and maintain order within the airport; and generally to assist in the enforcement of the provisions of the Act and the Regulations. However, collecting or picking up Sandals passengers arising from booked arrangements with Sandals and the respondents' employer was not prohibited by the Act or Regulations. There was therefore no evidence before the trial judge that would justify a lawful arrest of the respondents on the grounds that the Port Police were lawfully enforcing the provisions of the Act and its Regulations or that the respondents were committing or about to commit a crime, or were behaving disorderly.

• 5. Though the trial judge may have erred in her reasoning, her conclusions that the directions given to the respondents were unlawful, and that the Port Police had acted unlawfully by arresting the respondents cannot be faulted.

EDWARDS, J.A.

1 This appeal arises from a decision of the learned trial judge on the respondents' claim against the appellant ("SLASPA" or "the Authority") seeking compensation for assault, unlawful arrest and false imprisonment. The claim arose from the arrest and detention of the respondents by the appellant's Port Police on Friday, 18^th August 2006, at the Hewanorra International Airport for contravening the Saint Lucia Airport Regulations1 ("the Regulations") and their enabling Act. The judge interpreted the relevant Regulations, and found that the respondents did not commit any of the offences under the Regulations and the Saint Lucia Air and Sea Ports Authority Act Cap 8.132 ("the Act"). She concluded that the appellant's servants acted unlawfully in arresting the respondents. The judge entered judgment in favour of the respondents, and awarded to each respondent the sums of $1,200.00 for special damages, $14,000.00 for general damages together with interest at the rate of 6% per annum from the date of the judgment until payment. The grounds of the Notice of Appeal essentially allege that the learned judge erred in her interpretation of the Regulations and her findings.

2 Despite the conflicting evidence of the respondents and the two Port Police officers as to exactly where at the Hewanorra Airport the two respondents were at the time of their arrest, the judge apparently found that they were not in a restricted area as the Port Police witnesses alleged, but that they were in the arrival lobby area of the airport where they had gone to pick up arriving Sandals guests. The respondents at the material time were employed as drivers by Mr. Kervin Mitchell who trades in the name CJ's Touring Services. Mr. Mitchell is a certified taxi provider within the tourist industry, providing transport to tourists in Saint Lucia pursuant to section 3(2)(f) of theTourism Incentives Act Cap. 15.303. Mr. Mitchell transports overseas clients/guests on behalf of two hotels: Sandals Resorts and Windjammer Landing, on a contractual basis. Sandals Resorts at the material time, operated an information desk in the arrival lobby of the Hewanorra International Airport with the full consent and acquiescence of the appellant.

Factual and Legislative Background

3 The Authority through its General Manager is responsible for the maintenance, supervision, management and control of the airports in Saint Lucia under the Act

and Regulations. Section 19 of the Act provides:

"19.—(1) Subject to the provisions of this Act, the Authority is hereby empowered to provide in accordance with the provisions of this Act and any regulations...