Supreme Court
Action No. 202 of 2003
25th July, 2003
Hon. Abdulai Conteh, C. J.

Mr. Dean Barrow S.C. for the Applicant.
Mr. Elson Kaseke, Solicitor General with Ms. Cheryl-Lyn Branker-Taitt, for the Respondent.

Section 20 (1) of the Belize Constitution - Erection of fence - Validity of Statutory Instrument No. 136 of 2002 - Belize City Council (Fences Control) Regulations 2002 - Whether offence committed at the time of the erection of the fence - Unlawful entry of premises and destruction of fence - Injunction preventing police from continuing to demolish fence - No notice given to the Applicant - Statutory Instrument null and void as being ultra vires the Belize City Council Act Chapter 85 of the Laws of Belize - Damages - Consequential Relief - Costs to Applicant.

J U D G M E N T

1. Mr. Brian Brown has invoked the provisions of the Belize Constitution under section 20(1) and the inherent jurisdiction of this Court, to ask for protection and redress in the form of a Declaration that his constitutional rights under sections 6(4); 9(1), 14(1) and 17(1) of the Constitution have been contravened by the Minister of Home Affairs and the Commissioner of Police and their servants and agents.

2. Mr. Brown complains for two main reasons: First, he said he was charged on 2nd May 2003 with an offence for violating the Belize City Council (Fences Control) Regulations 2002, because he had erected a fence of a certain height and nature at a time when he did so was not an offence. Secondly, he complains that the police at about 5 p.m. on the same day, Friday 2nd May 2003, wrongfully entered his premises at 7476 Jimmy Dyer Avenue in Belize City without lawful cause to take possession of his fence and started to destroy it and completely destroyed his dirt box and that part of his fence of which it was a part; and that the police threatened to return in a week's time to complete the destruction of the entire fence and the roofing it supports.

3. Mr. Brown is also seeking a Declaration that Statutory Instrument No. 136 of 2002, the Belize City Council (Fences Control) Regulations 2002, under which the police as servants or agents of the Minister and the Commissioner of Police claimed to have acted, is ultra vires the Belize City Council Act, which is Chapter 85 of the Laws of Belize, and that the Statutory Instrument is null and void as well as violating sections 6(4), 9(1), 14(1) and 17(1) of the Belize Constitution.

4. Mr. Brown is also seeking an order from this Court that the Government of Belize pay him exemplary damages for the several breaches of his constitutional rights he alleges.

5. He also seeks an injunction to prevent the police from ever returning to his premises to continue the demolition of his fence, in addition to any such other consequential relief as may be just, as well as costs.

6. I should, at the outset, commend the good sense displayed by the Solicitor General as an officer of this Court, when at the start of the hearing of the proceedings in this matter, which commenced, exceptionally on a Saturday, the 10th May 2003, because of the imminent threat of complete demolition of the applicant's fence, he the Solicitor General, informed the Court that he had advised the Belize City Council to stay its hands from completing the demolition job on the applicant's fence. In the event, therefore, there was no need to grant an interim order. But it is not in dispute that the applicant's fence was materially damaged.

7. In fact, Mr. Brown, in addition to his affidavit evidence, called Fortunato Noble, a videographer for Channel 7 TV News who put in evidence Exhibit FN 1, a videotape of a newscast for 2 May 2003, depicting, among other things, the scene at the applicant's premises on that day. This showed a bulldozer clearly ramming a fence and some structure in an endeavour to pull them down.

8. The learned Solicitor General, representing the respondent however, at the commencement of the hearing, raised a preliminary objection that the Attorney General was not the proper respondent to these proceedings. But in a ruling of this Court dated 10th May 2003, I held principally, that in view of the nature of the applicant's complaints concerning the alleged breaches of his constitutional rights by the Minister of Home Affairs and the Commissioner of Police and their servants and agents, and that the Statutory Instrument No. 136 of 2002 - Belize City Council (Fences Control) Regulations (the S.I. as it will be referred to subsequently), was null and void, and violative of the Belize Constitution, that the Attorney General was a sufficient and necessary respondent for the purposes of these proceedings.

9. In point of fact, I must state that on the materials before me, although the learned Solicitor General valiantly tried to explain away the incident at the applicant's premises as a Belize City Council action, I am satisfied that it was clearly a police action, albeit, under the colour of Regulations made by the Council as contained in the S.I. A view of the videotape (Exhibit FN 1) and a reading of the Affidavit of Senior Superintendent of Police, Gerald Westby, of 8th May 2003 (vide, paragraphs 2, 3, 4, 5, 13, 14 and 15 in particular) put this, in my view, beyond doubt. I am satisfied that Mr. Godfrey Gentle, the bulldozer driver was at the material time under the direction and control of the police who had, in the words of Senior Superintendent Westby, "cordoned off…the entire block", on which the applicant's premises were situate (paragraph 13).

   The Background of the Application

10. Mr. Brown in his affidavit of 5th May 2003 says he is a businessman and conducts an auto rental and sales, cement mixer and tool rental enterprise at No. 7476 Jimmy Dyer Avenue, where he also resides. It would appear, from his affidavit, that Mr. Brown may not be a fan of the police and has had several runs up against them before the incident at his premises in the afternoon of Friday 2nd May 2003. I reproduce here the material paragraphs of his affidavit which would paint in the background to this case and the reasons for Mr. Brown's application:

    "5. At about 5:20 p.m. on Friday, May 2nd, 2003, I received a phone call telling me that the police were at my premises on Jimmy Dyer Avenue. I was at the time in my car on Albert Street in Belize City.

    6. I proceeded straight to my premises and saw, when I arrived, about 15 police vehicles parked all along Jimmy Dyer Avenue, a short street. There were, as well, about 30 police officers around my premises and all seemed to be armed with M-16 rifles.

    7. I recognized Gerald Westby, whom I believe to be a Senior Superintendent, to be in charge and I went and asked him what was going on.

    8. At this time the guns were trained on me and Westby said that "we only want you to witness our taking down your fence, which is above four feet in height."

    9. Westby then told a civilian and a police officer to measure the fence. The civilian held the tape measure from the bottom and the police officer in camouflage climbed on top the zinc roofing over my fence and held the tape measure from the top.

    10. Westby told me to move aside so that a tractor/bulldozer that was parked facing my fence could be driven (by a civilian driver) into the fence.

    11. I asked Westby why he was doing this and he said there was a law amended by the Belize City Council and that I had broken the law because my fence was over 4 ft in height.

    12. I said that I had no knowledge of this law and asked why I hadn't been informed or had any notice sent to me. Westby replied "boy, I can't help you."

    13. I asked him for time to do what he said was required, to give me at least a day. Westby then called Inspector Alvarez and instructed him to give me a paper, which turned out to be a charge for breaking the law relating to fences. (I attach hereto and mark BB1 a copy of the said charge).

    14. I then asked Westby why we couldn't go to court before he broke my fence, but he said we would go go (sic) court after the demolition.

    15. I again asked for a day so I could cut the fence down myself. I told Westby that my tools and rental vehicles would be exposed and that the fence provided security for them.

    16. Westby said "Mr. Brown, I am not here for any long talking." He then told me to move to the other side of the street, pointed to the bulldozer driver and signalled him to proceed.

    17. The bulldozer driver then drove into the fence at a spot where I had signs and drawings, and which was lower than four feet from the ground.

    18. An immobile pick-up truck was parked on the street side and was in the way, preventing the bulldozer from getting at the rest of the fence on that side. Westby then instructed the driver to go to the other side of the fence where there was a built-in dirt box.

    19. The bulldozer charged into the fence where the dirt box was, and with five or six pushes the fence at that spot crumbled completely. The whole dirt box gate was torn down, leaving rubble at that spot.

    20. The bulldozer then came back to the side of the fence where the initial thrust had been made and was preparing to push the pick-up out of the way.

    21. I pleaded with Mr. Westby to give me a break, saying that my fence was already torn open. I explained that a beam was on top of the fence and supporting the roof, and that it would collapse if further damage was done, bringing the roof down on my rental vehicles parked thereunder.

    22. At that point Westby signalled the bulldozer driver to stop. He then said "Mr. Brown, I'll give you until Friday. If you haven't pulled the fence down to four feet by then, we'll be back."

    23. Westby and the police then left, with two of the officers riding on the bulldozer driven by the civilian.

    24. Police public relations officer G. Michael Reid, present throughout, told me (and Channel 7 television, which aired his comments in their newscast that same evening) that the police were acting under a City council law and therefore had the authority to do what they did. Reid told Channel 7 that if anyone was dissatisfied, he should challenge the law that give the police the power to tear down my fence."

11. The Mayor of Belize City Council and his council are not formally a party to these proceedings before me. But the Council issued the S.I. on which the actions of the police against which Mr. Brown is complaining were based. The Mayor has, as a riposte as it were, to Mr. Brown's application, filed an affidavit dated 8th May 2003. I reproduce here, as well, the material paragraphs of this affidavit in order to complete the background to these proceedings before me:

    "3. The Council operates under the Belize City Council Act, hereinafter referred to as "the Act", a copy of which is now produced and shown to me marked "DF 1".

    4. On the 31st October, 2002, the Belize City Council, acting under Section 61 of the Act, and exercising all other powers thereunto it enabling, made Statutory Instrument 136 of 2002, entitled the "Belize City Council (Fences Control) Regulations, 2002". A copy of the said Statutory Instrument is now produced and shown to me marked "DF 2".

    5. The other powers which enabled the Council to make the said Statutory Instrument are set out in the Act.

    6. Regulation 4(1) of the Statutory Instrument provides that all fences in Belize City shall conform to the Regulations set out in the Second Schedule thereto. The Second Schedule regulates the height of fences (not more than four feet in height of solid or opaque wall or surface with additional height as specified therein being of transparent material consisting of permitted construction material). Regulation 2(1) of the Statutory Instrument defines "permitted construction material" as material determined by the owner of premises within the city limits for constructing a fence and approved by the Council on the basis of appropriateness, aesthetics, safety and security.

    7. The policy reasons which informed the Council to exercise its powers in making the Statutory Instrument was to effect orderly town planning, to deter crime, promote health, morality, safety and order in the City limits, by requiring fences to be of a certain height and made of certain construction material.

    8. Under Regulations 6(1) and (2) of the Statutory Instrument, as I understood at the time of the making thereof and as I have since implemented it, the Council required owners of existing fences which did not comply with the Regulations to carry out works necessary to ensure that such fences comply with the Regulations within one month of the commencement of the Regulations and, if the owners of such fences failed to do so within the said one month period, the Council would then itself carry out such works, and charge the owners of such fences with the expenses occasioned thereby.

    9. Also, Regulation 8 of the Statutory Instrument creates an offence against any person who fails to comply with the Regulations. The position of the Council has always been that Regulation 8, when read with Regulations 6(1) and 6(2), create an offence against owners of existing fences who fail or refuse to comply with the Regulations within one month of the entry into force of the Statutory Instrument.

    10. After the 5th of March, 2003 City Council elections, the present Council decided to establish administrative capacity to implement the Statutory Instrument and sought the inter-agency cooperation of various departments in achieving this objective, including the cooperation of the Police Department and obtained equipment to tear down fences not conforming to the Statutory Instrument. The reason the Council sought the cooperation of the police is that the Council anticipated to be obstructed when carrying out its statutory duties as provided in the Statutory Instrument, and it was felt that the Police should keep the peace, as well as protect Council employees from intimidation, harassment or injury when tearing down fences.

    11. When the Council decided to implement the Statutory Instrument, it was, and still is, the intention of the Council to pull down the fences not conforming with the Statutory Instrument and to construct, with the cooperation of the fence owner, a fence conforming with the Statutory Instrument, and charge the expenses occasioned thereby to the owner of the fence.

    12. During the last week of March, 2003, as part of the Council's decision to implement the Statutory Instrument, I contacted by telephone the Commissioner of Police of the Belize Police Department at his Office and requested him to send verbal notice to the Applicant to comply with Regulation 6(1) of the Statutory Instrument, even though the Applicant was already contravening the said Regulation 6(1). I gave him the address of the Applicant where the offending fence was located, named 7476 Jimmy Dyer Crescent, Faber's Road Extension, Belize City. The reason I contacted the Commissioner of Police was due to security concerns, and concerns that if I sent Council officers with my notice they might be harassed. I state categorically that the Applicant was not targeted, but formed part of a larger city-wide plan to implement the Statutory Instrument. I also state categorically that even though the Applicant was already contravening the law, I gave the additional verbal notice in a spirit of being fair to the Applicant.

    13. At this time I was told by the Commissioner that Senior Superintendent Westby, as the Commander of Operations for the Belize Police Department was the one responsible for liaising with the Council and that he would detail him to see to my request.

    15. Since the Council resolved to implement the Statutory Instrument, I have instructed Council officers to survey the entire city to find out fence owners with fences which did not comply with the Statutory Instrument, but I could not proceed further the with implementation of the Statutory Instrument because the present proceedings were instituted challenging the validity of the Council's powers to act as it did in this case.

    16. The position of the Council is that the Statutory Instrument shall be implemented without fear or favour or discrimination and the Council intends to proceed fully to implement the Statutory Instrument after the present proceedings are over.

    17. On the 2nd of May, 2003 I again contacted Senior Superintendent Westby and informed him that the Applicant had failed to comply with the notice and that the Council would tear down the Applicant's fence. I requested that he accompany Council employees to the Applicant's address and there keep the peace, and to prevent the intimidation, har(r)assment (sic) and obstruction of Council officials by anyone.

    18. I also requested Senior Superintendent Westby to cause a police officer to lay a complaint against the Applicant because the Applicant had contravened regulation 8 of the Statutory Instrument. I made the request under Sections 52 and 53 of the Act, and other powers under the Act and the Statutory Instrument thereunto me enabling.

    19. I instructed Mr. Godfrey Gentle, a Council employee, to proceed to the address in the company of Senior Superintendent Westby and some other police officers, and begin demolishing the Applicant's fence.

    20. As I have stated above, the intention and position of the Council was to demolish the Applicant's fence and construct, in consultation with the Applicant, a new fence conforming to the Statutory Instrument, and charge the Applicant for charges occasioned thereby.

    21. I was later informed by Mr. Gentle that the fence was only partly demolished as certain electrical fittings had to be first removed in order to complete the demolition.

    22. The demolition has since remained incomplete because of the institution of the present proceedings."
    
    The Issues raised by the Application

12. I had earlier set out the reliefs Mr. Brown is seeking from this Court. In my view, these turn on the validity or otherwise of the S.I. on which the actions against him, whether the police operations at his premises or his being charged with a criminal offence were based. At the heart of all this is the validity or otherwise of the S.I.

13. Mr. Dean Barrow S.C. the learned attorney for Mr. Brown has mounted a trenchant attack on the S.I. He submitted that the police purported to act under a law, that is the S.I. in question, that is invalid, null and void. First, he said, because the S.I. is outside the scope of the powers conferred on the Belize City Council by the enabling Act, viz, the Belize City Council Act - Chapter 85 of the Laws of Belize (referred to as the 'Act' hereafter); and that secondly, he submitted, even if the S.I. were within the four corners of the Act, it nonetheless contains provisions that are unconstitutional. Mr. Barrow further submitted that the pulling down of Mr. Brown's fence was outside the powers granted to the Belize City Council by the Act and that the Council cannot treat breaches of the regulations contained in the S.I. as including the power to demolish fences. The brunt of Mr. Barrow's attack is trained in particular at Regulation 6 of the S.I. This provides as follows:

    "6(1) If, at the commencement of these Regulations, a fence in Belize City does not conform to the Regulations set out in the Second Schedule, the owner of such fence shall, within one month of such commencement, carry out such works as may be necessary to ensure that the fence complies in all respects with these Regulations.

    (2) Where the owner of an existing fence fails to carry out the necessary works to ensure compliance with the Second Schedule within the said period, the Council may itself carry out such works, and the costs incurred by the Council in so doing shall be a debt due to the Council by the owner for the time being of the premises."

14. Mr. Barrow also submitted that the lack of notice provision in Regulation 6 must be repugnant to the parent Act, in that section 27 of the latter on fences provides for notice in writing. Therefore because Regulation 6 of the S.I. contains no notice provision, he submitted, it must be ultra vires the Act.

15. On the claim of Mr. Brown that his constitutional rights as provided for in section 6(4) of the Belize Constitution have been violated, his attorney, Mr. Barrow S.C., properly conceded that this is a matter that can be raised before the trial Court. This relates to the pending criminal prosecution against Mr. Brown for the alleged non-compliance with the Second Schedule of the S.I., contrary to Regulations 6 and 8 of the said S.I. (see paragraphs 12 and 13 of Brown's affidavit of 5th May 2003 and Exhibit BB 1 annexed thereto; paragraph 18 of Mr. David Fonseca's affidavit of 8 May 2003, Mayor of Belize City; and paragraph 19 of Senior Superintendent of Police, Mr. Gerald Westby's affidavit of 8th May 2003). The claim by Mr. Brown under this head is that the offence alleged against him, viz, building his fence to a height not in accordance with the provisions of the S.I., was not an offence when he constructed his fence. Therefore, he claimed that his constitutional rights under section 6(4) have been violated. This section of the Constitution salutatory I think, disavows retroactive criminal liability.

16. In any event, this is a matter more proper for the trial Court, if indeed Mr. Brown were to be proceeded against in Court. There, he could properly and legitimately raise this claim by way of a defence to the criminal action: Boddington v British Transport Police (1998) 2 W.L.R. 639. Suffice it therefore, for me to say here that I am not sure there is a constitutional right not to be charged with a retroactive offence or to be improperly charged with any offence for that matter. But what the Constitution does guarantee and provide for, is that no one shall be held to be guilty of a criminal offence on account of an act or omission that was not an offence at the time the act or omission took place.

17. I therefore do not find it necessary to pronounce at this time, on the Declaration sought by Mr. Brown that his constitutional rights, that is, under section 6(4), have been violated in consequence of his having been charged with allegedly violating the provisions of the S.I. in question; as his counsel has, as I said, properly conceded that this could be raised at the trial, if any, by way of a defence or collateral attack. I am confident, however, that the prosecutors of Mr. Brown will bear in mind the views I express here and my findings on the vires or otherwise of the S.I. itself.

18. I must however, say that for the purposes of determining this application in the light of the issues raised, it makes no difference that the police were acting in aid of the Belize City Council or were acting on their own. The matters the applicant has complained about stemmed from the S.I. in question. It is therefore the validity or otherwise of the S.I. that I believe is determinative of the issues. Therefore, it is, I think, for the purposes of this case unnecessary and not even helpful to decide who set whom in motion - whether the police were only present at Mr. Brown's house to ensure no breach of the peace while his fence was being demolished, as was contended for by the learned Solicitor General and averred by Superintendent Westby in his affidavit at paragraph 18, or the demolition was done by a Council employee, Mr. Godfrey Gentle, as averred by the Mayor of Belize City Council in his affidavit at paragraphs 19, 20 and 21. The propriety of the actions in the late afternoon of 2 May 2003 at Mr. Brown's premises, is to be decided in the light of the validity or otherwise of the S.I., and in particular, its Regulations under which he was proceeded against on that day.

19. The validity of statutory instruments is generally a question of vires, that is, whether or not the enabling power conferred by some parent Act has been exceeded or wrongfully exercised - see generally Craies on Statute Law 7th ed. at p. 311.

20. Indeed, it is expressly provided in section 21(b) of the Interpretation Act - Chapter 1 of the Laws of Belize, Rev. Ed. 2000, that where an Act confers power on any authority to make subsidiary legislation then unless the contrary intention appears, "no subsidiary legislation shall be inconsistent with the provisions of the Act under which it is made."

21. Therefore, in determining the issues raised by Mr. Brown, it is helpful, I think, to examine the law-making powers of the Belize City Council which issued the S.I. Mr. Brown has sought to impugn, with particular reference to fences.

    The Belize City Council and its law-making powers (Subsidiary Legislation)

22. I have read and carefully considered the affidavit of the Mayor of the Belize City Council filed in these proceedings. I am also mindful of the fact that the Belize City Council is an elected body and indeed, its current Mayor and members have just been returned to office after fresh Municipal elections earlier this year. But, however, the fact remains that in law, the Belize City Council is a creature of statute, viz, the Belize City Council Act - Chapter 85 of the Laws of Belize, Rev. Ed. 2000 - referred to as the Act in this judgment This Act became operative on 5th February 1999, having repealed and replaced Chapter 66 of the 1980 Rev. Ed. of the Laws of Belize dealing with the old Belize City Council. Therefore, all the powers of the Council and its actions must be within the remit of this Act and in consonance with the general law.

23. The Belize City Council Act confers the usual powers, now to be found given to municipalities almost universally. Part VIII of the Act on the Duties and Powers of the Council in relation to streets and adjoining lands (sections 24 to 28), gives the Council a wide latitude and some responsibilities. Section 27 for example, imports some duty and responsibilities on the Council to fence or repair fences in certain cases. This provides as follows:

    "27. If any land adjoining any street within the boundaries of Belize City is allowed to remain unfenced or if the fences of such land are allowed to be or remain out of repair and the land is, owing to the absence or inadequate repair of any such fence, a source of danger to passengers, cyclists or pedestrians, or is used for any immoral or indecent purpose, or for any purpose causing inconvenience or annoyance to the public, the Council may, at any time after the expiration of fourteen days from the service upon the owner or occupier of such land of a notice in writing by the Council requiring the land to be fenced or any fence on the land to be repaired, cause the land to be fenced or the fences thereto to be repaired in a manner it thinks fits, and the reasonable expenses thereby incurred shall be recoverable from the owner or occupier summarily as a civil debt."

24. It is to be noticed that it is only after the expiration of fourteen days from the service upon the owner of the unfenced, dilapidated or dangerous fence, may the Council itself move in to fence or effect the necessary repairs to the fence. The section also includes a provision for the summary recovery of the reasonable costs for such works by the Council.

25. Again, by section 28 of the Act, the Council may by notice in writing to the owner of any land within Belize City, require such owner, within a reasonable time specified in the notice, to erect a fence dividing the land from an adjoining street or to repair or restore such fence. A fine of fifty dollars is payable for every day the fence is not erected, repaired or restored after the owner of the land adjoining the street has been served with notice by the Council. Again the requirements of notice in writing and reasonable time are imported.

26. Still under Part VIII of the Act, sections 29 and 30 spell out the general powers and duties of the Council. These are, it must be said, unexceptionable powers and duties to be found entrusted to most municipal authorities today.

27. In order to enable the Council to discharge its powers and duties, it is given, under Part X of the Act concerning legal and general, the power and authority to make by-laws (section 49) and Regulations (section 61). Although the two expressions, viz, bye-laws and Regulations are used in Part X, they are in terms, subsidiary legislation or delegated legislation. There is no magic in the name to conjure up anything, for as Professor PP Craig writes in Administrative Law, 4th Edition (1999): "There is a bewildering variety of names for delegated legislation. Order in council, rules, regulations, bye-laws and directions all jostle one another upon the statute book. The key to sanity is the realisation that nothing turns upon the precise nomenclature" at p. 367. I may add here that the Council is also given the authority by section 48 of the Act to make regulations concerning pension and gratuities of its officers and servants. But this is not in issue in these proceedings.

28. I might add however, that for the purposes of these proceedings, the key to legality is whether or not the impugned Statutory Instrument No. 136 of 2002 is within or outwith the Act. Therefore, as a species of subsidiary legislation, it falls within section 21 of the Interpretation Act, to which I had earlier referred. I shall now turn to the powers of the Council relating to fences.

    The Belize City Council and its powers relating to Fences

29. A close reading and analysis of the Act would show that the Council is given three distinct sets of powers regarding fence in Belize City.

30. The first relates to land adjoining any street within the boundaries of Belize City. If any such land is allowed to remain unfenced or if its fences are allowed to be or remain out of repair and the land, because of the absence of fence around it, or because of the dilapidated state of its fences, presents a source of danger to passengers, cyclists or pedestrians or is used for any immoral or indecent purpose or for any purpose causing inconvenience or annoyance to the public, then, the Council is given the power by section 27 of the Act after fourteen days of serving notice in writing on the owner or occupier of the land, to effect the erection of the fences or their repair. The reasonable expenses for doing this are recoverable from the owner or occupier of the land in question summarily as a civil debt.

    The power of the Council in this instance therefore, relates to unfenced lands or lands with dilapidated fences and by reason of such state present a source of danger to the public or are used for immoral or indecent purpose or for any purpose causing inconvenience or annoyance to the public.

31. The second power vested in the Council relating to fences is that by section 28, it may, by notice in writing specifying a reasonable time, require the owner of any land (of course, only land within Belize City) to cause a sufficient fence to be erected dividing such land from any adjoining street or to cause any fence dividing the land from any adjoining street to be restored or repaired. Failure to comply with the requirements of any notice under this section served by the Council on the owner of the land is to be visited with a fine of fifty dollars for every day the default continues after the written notice from the Council.

32. It is to be noticed that the powers of the Council in these two instances relate to the requirements to fence land adjoining streets: in the one case, to require owners or occupiers to fence for public safety or convenience, in the other, to require the owner of the land to fence his land dividing it from any adjoining street. In both cases however, it is the contiguity of the land in question to a street that is, I think, the paramount consideration. There is no reference to the seemingly micro-management provisions contained in the Second Schedule to the S.I. in issue here.

33. The third source of power of the Council in relation to fences is, I believe, to be found in section 61 (f) of the Act. This provides in terms as follows:

    "61(1) The Council may make regulations for the better carrying out of the objects and purposes of this Act, and without prejudice to generality of the foregoing, such regulations may provide for:-
    
    (a)
    (b)
    (f) the erection of fences between adjacent lots and messages". (sic)
    (no doubt it is messuages that is meant).

34. It is under this section evidently that the impugned S.I. was made. Indeed, it says so expressly on its face; and the Mayor in his affidavit expressly says so as well (see paragraph 4).

35. This S.I. has drawn the ire of Mr. Brown and through his learned attorney, Mr. Dean Barrow, S.C., it has been forcefully urged on the court that it is ultra vires the Act.

36. The learned Solicitor General for the respondent on the other hand, has submitted that a holistic and purposive reading of sections 27, 28, 29, 49 and 55 conjunctively with section 61 of the Act would show that the impugned S.I. is within the Act.

    Is the S.I. ultra vires or intra vires?

37. I have carefully weighed the arguments and submissions of both Mr. Barrow S.C. for the applicant, and the Solicitor General for the respondent. I am however, of the considered view that the S.I., on a close and proper analysis, is outwith the powers of the Council under the Act relating to fences generally and in particular to section 61, paragraph (f). This section clearly only enables the Council to make regulations for the purpose of "the erection of fences between adjacent lots and messuages". The Council however in defining "fence" in the S.I. says that it "includes any boarding or paling, banks or walls or any structure used to bound, surround, enclose, barricade, or protect an area". Clearly, the Council only has power to make regulations for the erection of fences between adjacent lots and curtilage or messuages. By defining "fence" to include any boarding or paling, banks or walls or any structure used to bound, surround, enclose or protect an area, I think, the Council in the S.I., is going a step or two further than it can properly do under section 61. The Council for example cannot make regulations relating to fences for lands adjoining streets. What the Council can do as I have tried to show in relation to these lands in virtue of sections 27 and 28, is to require owners of such land to fence or repair fences in circumstances specified in those sections, and the consequences of failure to do so are spelled out.

38. But by Regulation 4 of the S.I. the Council has assumed the power to regulate all fences in Belize City by mandating that they conform to the Second Schedule of the S.I. This, I am afraid, the Council cannot, consistent with its powers under the parent Act, do. Section 61 only allows the Council to make regulations for the erection of fences between adjacent lots and curtilages and not for all fences: a power to make regulations for the erection of fences between adjacent or contiguous lots and curtilages does not include a power to make regulations for all fences in Belize City. Thus in Brown v Holyhead Local Board (1862) 32 L.J. Ex 25, the local Board was authorised by statute to make by-laws with respect, among other things, "to the level, width and construction of new streets." The Board made a by-law empowering them "to cause any works in new or existing buildings" of which they did not approve, "to be pulled down or otherwise dealt with as the case may require." Pollock CB speaking for the Court said:

    "We are all of opinion that the by-law is not valid, as it is not in pursuance of the authority."

    (See Craies on Statute Law seventh edition at p. 324 where this case is also cited and subsequent pages on ultra vires and bye-laws).

    See also Powell v May (1946) K.B. 330; and (1946) 1 All E.R. 444.

    There are, I find, elements of micro-management stipulations under the Second Schedule of the S.I. in question that are not easy to reconcile with the duties regarding fencing by owners of lands adjoining streets as provided for in sections 27 and 28 of the Act.

39. Moreover, in order to be a proper exercise of the power conferred by paragraph (f) of section 61 of the Act, regulations made by the Council pursuant to this power can only affect the erection of fence after the promulgation of the S.I. Therefore, to make the S.I. relate back, as it were, to fences existing before its operative date (which is stated to be 1st November 2002) is clearly to go outside the power given by the section. Therefore to extend the reach of the S.I. to include existing fences, that is, those that had been in place before the S.I., as Regulation 6 purports to do, is in my view, clearly outside the powers of the Council under section 61. As a matter of construction, plain common sense and ordinary language, the provision in section 61(f) that the Council may make regulations which "may provide for … the erection of fence…" can only speak to the future. But by purporting to apply the Regulations to all fences and expressly to existing fences as well (Regulation 6) in the way and manner provided by the S.I., is beyond the powers conferred by the Act on the Council. To allow the Council by the S.I., to affect existing fence owners in the way and manner it purports to do and to subject them to criminal liability as provided for in Regulations 4, 6 and 8, could not have been intended by the Legislature when it gave the Council the power to make regulations relating to the erection of fences.

40. I am further fortified in my view that the S.I. is ultra vires the Act by several provisions of the S.I. themselves. I find, for example, the absence of notice in writing under Regulation 6 of the S.I., unlike the requirements for one under sections 27 and 28 of the Act, difficult to reconcile with the Act, or to think that the S.I. is not ultra vires the Act. Under the Act notice in writing is required by its substantive provisions relating to owners of fences or lands on whom there is a duty to fence or those required to fence; but under Regulation 6 no such notice is required: all that is required is that owners of existing fences "shall within one month" of the commencement of the S.I., which is stated to be 1st November 2002, be compelled to ensure their fences comply with the Regulations. Failure to comply is made an offence punishable by fine or imprisonment or both. Thus, by a sidewind the Regulations would purport to impose criminal liability even on fence owners who had their fences long before the S.I. became operative.

    This absence of the requirement of notice I find, also makes the S.I. outwith the Act. It is sheer sophistry, I think, to argue that "within one month" of the commencement of the S.I. is notice. It is not notice at all: it speaks to the commencement of the operation of the S.I. On the facts of this case, I do not believe that any notice at all was given to Mr. Brown. The averments of Superintendent Westby in his affidavit notwithstanding, there was no proper notice or any notice in any meaningful sense, given to Mr. Brown about his fence.

41. Moreover, Regulation 7 of the S.I. on "Dangerous fences" elevates, if that is the word, the concept of a fence constituting a source of danger to the public to new heights quite outside the bounds contemplated and provided for already by section 27 of the Act. Unlike the duty to fence or repair dilapidated fences on lands adjoining streets in Belize City, imposed by section 27 of the Act, Regulation 7(2) of the S.I. purports to make "a fence dangerous" "if in the opinion of the authorised officer the fence is constructed of a material that may cause injury to the public, or which may contribute to harbouring or promoting illicit activities, and in forming his opinion, the authorised officer may have regard, inter alia, to the following factors, namely degree of opacity, structural integrity, the activity that is believed or suspected to occur within the enclosed premises and its location." (emphasis added)

    Thus, from the duty to fence or to maintain and repair fences in certain cases as is provided in sections 27 and 28 of the Act, the S.I. introduces a new and wholly dubious concept of "dangerous fence". The situation is not helped by the S.I. giving the Council the power to remove, alter or demolish the so-called "dangerous fence", when the Act itself gives no such power to the Council.

42. I had earlier outlined the powers of the Council in relation to fences; therefore for all the reasons given here, I find the S.I. ultra vires the Act.

43. The learned Solicitor General strove mightily to save the S.I. and he urged upon me the unexceptional proposition that there is a presumption of constitutionality for subsidiary legislation in West Indian jurisprudence, which, he said, was directly applicable to the S.I. now sought to be impugned.

    I called the proposition "unexceptional" because, it must be presumed that every subsidiary legislation like any parent Act itself, must be within the four corners of the Constitution to be valid. And in the case of a subsidiary legislation such as the S.I. in issue here, it must meet the additional threshold of being within the remit of the parent Act under which it is made. Whether it does or does not when challenged, is, I think, properly the province of the Courts to determine.

44. The learned Solicitor General also put much store on the seminal case of Kruse v Johnson (1889) 2 Q.B. 91. Let me say right away that I respectfully endorse and concur with the views of Lord Russell of Killowen CJ in that case when he stated: "… when the court is called upon to consider the bye-laws of public representative bodies clothed with ample authority…and exercising that authority accompanied by checks and safeguards…I think the consideration of such bye-laws ought to be approached from a different standpoint. They ought to be supported if possible. They ought to be, as has been said, 'benevolently' interpreted, and credit ought to be given to those who have to administer them that they will be reasonably administered. This involves the introduction of no new canon of construction. But, further, looking to the character of the body legislating under the delegated authority of Parliament, to the subject matter of such legislation, and to the nature and extent of the authority given to deal with matters which concern them…I think Courts of justice ought to be slow to condemn as invalid any bye-laws so made under such conditions, on the ground of supposed unreasonableness. Notwithstanding what Cockburn C.J. said in Bailey v Williamson - an analogous case - I do not mean to say that there may not be cases in which it would be duty of the court to condemn bye-laws made under such authority as these were made as invalid because unreasonable. But unreasonable in what sense? If, for instance, they were found to be partial and unequal in their operation as between different classes, if they were manifestly unjust, if they disclosed bad faith, if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires." (emphasis added)

    The qualifications or considerations which Lord Russell C.J. himself referred to which I have underlined in the passage from his judgment, which may well lead a Court to hold that Parliament never intended to give authority to the bye-law in question, with respect, in my judgment, are present in the case of the S.I. before me.

45. Mr. Barrow S.C. for the applicant relied additionally on the ground of unreasonableness of the S.I. as a reason to strike it down. I must say, however, that in view of my finding on the vires of the S.I. I do not think it necessary to explore this ground any further. But one of the considerations referred to by the learned Chief Justice (Lord Russell) in the Kruse case supra, "oppressive or gratuitous interference with the rights of those subject to the bye-law as could find no justification in the mind of reasonable men", which might well lead a court of justice to say that Parliament never intended to give authority to make such bye-law, and that it is therefore unreasonable and ultra vires, is, I believe, clearly present and manifest in the S.I. in issue here and the material facts, from the evidence, that have been given rise to it being challenged by Mr. Brown.

    The Council itself evidently realised that some element of oppressive or gratuitous interference must necessarily accompany any attempts to implement some aspects of the S.I., especially those relating to existing fences. Therefore on the facts of this case, the Council had to have recourse to the police to pull down Mr. Brown's fence (see the Mayor's affidavit at paragraphs 10, 12 and 17). In my view, any law that must have the coercive presence of the police every time it is to be implemented must raise serious concerns as to its propriety or validity.

46. The S.I., in my view, goes too far, when it is made expressly applicable to all fences in Belize City (see its Regulation 4) including, it must be said, those fences that were in existence even long before the S.I. was ever dreamed of. Its application to these might well involve oppressive and gratuitous interference with the rights of these fence owners. This could never have been intended by the Legislature and, in any case, it goes well beyond what is contemplated in section 61(f) of the Act. I can conceive of no more gratuitous interference with rights than to make a bye-law affect property or structures that have long been in existence even before the bye-law itself was enacted.

47. It is, of course, not for this Court to doubt or dispute the aims and objectives that actuated the Belize City Council to make and have promulgated the S.I. in question. Indeed, the policy reasons which informed the Council to exercise its powers in making the S.I. as deposed to by the Mayor in paragraph 7 of his affidavit as being, "…to effect orderly town planning, to deter crime, promote health, morality, safety and order in the City limits…" are as laudable as they are responsible. But to use the instrumentality of the S.I. to effect these in the way and manner its provisions stand, and to try to implement them in the fashion that was attempted late in the afternoon of Friday, 2nd May 2003 at Mr. Brown's premises, smacks, in my judgment, of nothing short of oppressive or gratuitous interference with the rights of all those fence owners in Belize City that could find no justification in the minds of reasonable persons.

    I am sure the Legislature did not intend this. The aphorism that a person's home is his or her castle finds constitutional expression and validation in the protection of the home given by sections 9, 14 and 17 of the Belize Constitution. Therefore, the tearing down of Mr. Brown's fence or his ramparts on the analogy of the castle, should only be done on the authority of some clear, unambiguous and legally based provision. I find that the S.I. in question here, falls far short of this. The Legislature could not have intended the Belize City Council to arrogate to itself, albeit under the colour of a Statutory Instrument, the power to enter a person's property to remove, alter or demolish a supposedly "dangerous fence" whatever this may mean, especially without an order from the courts of this country. I find that none of the qualifications imposed on sections 9, 14 and 17 of the Belize Constitution by their respective subsections (2) can avail or advance the validity of the S.I. in question in this case.

48. Finally, on the vires of the S.I., under the Act which is the fons et origo of the Council's powers, by section 27, the Council can only cause lands adjoining streets to be fenced or the fences thereon repaired in a manner it thinks fit, following the failure of the owner or occupier of such lands to do so; but this the Council may do only after fourteen days notice in writing to the owner of occupier to do so. The reasonable expenses of the Council to fence such land or repair the fences thereon are recoverable from the owner or occupier as civil debt.

    Also, under section 28 of the Act, the Council may by notice in writing to the owner of any land require such owner within a reasonable time specified in the notice, to cause a sufficient fence to be erected on the land dividing it from any adjoining street, or to cause any such fence to be restored, repaired or put in a proper state of repair. Failure to comply with the notice by the owner of the land makes her liable to a fine of fifty dollars for every day the default continues.

    It is manifestly clear that under the Act dealing with the Council's power in relation to fences, there is no equivalent of the draconian powers the Council is ascribing to itself under the S.I., to tear down people's fences. If the Council does not possess this power under its parent Act, it cannot by a mere statutory instrument arrogate it to itself. It must be remembered that under section 61 of the Act, pursuant to which the S.I. Mr. Brown has sought to impugn in these proceedings, was purportedly made, the Council is given powers to make regulations for the erections of fences. To tag on to this the power to enter people's property and tear down fences seems to me to be a little highhanded and beyond the powers of the Council under the Act.

49. Let me add this salutary reminder on judicial discretion and ultra vires as Sir William Wade so helpfully stated it in his book on Administrative Law 6th ed. (1988) at p. 354:

    "There are grave objections to giving the courts discretion to decide whether governmental action is lawful or unlawful: the citizen is entitled to resist unlawful action as a matter of right, and to leave under the rule of law, not discretion. 'To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundation of freedom from rock to sand' Scott v Scott (1913) A.C. 417 at p. 477. The true scope for discretion is in the law of remedies, where it operates within narrow and recognised limits and is far less objectionable. If the courts were to undermine the principle of ultra vires by making it discretionary, no victim of an excess of abuse of power could be sure that the law would protect him."

    Findings and Conclusions

50. For all the reasons I have stated above, I conclude that the Belize City Council stepped outside the provisions of its parent Act in promulgating The Belize City Council (Fences Control) Regulations 2002 - S.I. No. 136 of 2002.

51. In the light of Mr. Brown's application to this Court and on the evidence before me, from the affidavits of Mr. Brown and the Mayor of the Council and that of Superintendent Gerald Westby and Exhibit FN 1, I find and declare as follows:

    i) As I have already stated, the charge against Mr. Brown for violating the S.I. in question did not violate his constitutional right under section 6(4) of the Belize Constitution. But in view of my finding on the status of this S.I. I doubt if the charge would now successfully be proceeded with.

    ii) The entry by the police and the Council employee, Mr. Gentle, on the premises of Mr. Brown at 7476 Jimmy Dyer Avenue, Belize City at about 5:00 p.m. on Friday 2 May 2003, was wrongful as well as the demolition of his fence and dirt box. This did not however amount to a taking of his property in the constitutional sense (section 17(1) of the Constitution) but it constituted a wrongful entry thereon within the contemplation of section 9(1) of the Constitution and constituted as well an arbitrary and unlawful interference with Mr. Brown's privacy and home within the contemplation of section 14(1) of the Constitution.

    I therefore, accordingly so declare.

    iii) I also declare that S.I. No. 136 of 2002 is null and void as being ultra vires the Belize City Council Act - Chapter 85 of the Laws of Belize.

    iv) I order the respondent to pay the costs for the restoration of the applicant's fence and dirt box.

    v) For the emotional distress Mr. Brown must have suffered as he watched haplessly as his property was being destroyed despite his pleas and entreaties with the police and in the full glare of rolling cameras of Television News Stations, as evidence by Exhibit FN 1, I award by way of consequential relief, the sum of $20,000.00.

    vi) I also enjoin the police or the Belize City Council from returning to the Applicant's premises and continuing with the demolition of his fence.

Finally, I award the sum of $5,000.00 as costs to the applicant.

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