IN
THE SUPREME COURT OF BELIZE A.D. 2001
Civil
Appeal No. 1 of 2001
| Between |
(GEORGE
MEERABUX
(
|
APPLICANT/
APPELLANT |
| |
(
( And
(
(
|
|
| |
(THE
ATTORNEY GENERAL
(OF BELIZE &
( |
FIRST
RESPONDENT |
| |
(THE
BAR ASSOCIATION
(OF BELIZE |
SECOND
RESPONDENT |
K.
Anderson for Applicant/Appellant
T. Stewart for the First Respondent
F. Lumor (Senior Counsel) for the Second Respondent
J
U D G M E N T
AWICH J:
| Notes: |
Application for stay of judgment pending Appeal O. 2
r16 (c), Jurisdiction of a single judge S:3 (5) of the
Court of Appeal Act and
O. 2 r17 (1) of the Rules. A serious and tenable appeal,
subject matter of appeal will not be available appeal
might be nugatory. Special circumstances for order to
stay to be granted. |
An
Application for Stay of Execution Until Determination of
Appeal
On 23.3.2001, the applicant, George Desmond Meerabux (Hon.
Mr. Justice), a judge of the Supreme Court of Belize, filed
an application to the Court of Appeal of Belize for the
Court's orders that:
There be a stay of all proceedings by the Governor General
with respect to his consideration of the question of removal
from Office of the appellant/applicant for misbehavior in
accordance with Section 98 of the Constitution of Belize,
until after the hearing and determination of Civil Appeal
No. 1 of 2001 as has been filed by the appellant/applicant;
and that the costs of this application be in the cause."
At the
hearing of the application, learned counsel Mr. K. Anderson
for the applicant, applied verbally for leave to amend the
application at order 1, by substituting therefor an order
that all proceedings and actions by Belize Advisory Council
(the Council), regarding removal of the applicant from the
office of a judge of the Supreme Court of Belize be stayed
until the determination of the civil appeal case. Mr. Anderson
explained that since filing the original application on
23.3.2001, the Governor General had gone ahead and referred
the question of the removal of the applicant to the Council,
and suspended the applicant from office, the applicant then
wanted the next further actions in the process of removal,
which next further actions would be the actions of the Council,
stayed.
My instant reaction was that the application for amendment
raised the questions as to, whether the amendment applied
for was not a completely new application not proper to be
introduced by mere amendment, and whether it would not be
necessary to cite the Council and have the application served
on it. I abandoned my reaction because learned crown counsel
Mr. T. Stewart, for the first respondent, and learned senior
counsel Mr. F. Lumor for the second respondent, agreed to
the amendment. Mr. Stewart represented Attorney General
who would represent the Council anyway. Counsel for the
respondents must have considered that the amendment would
not occasion prejudice to the respondents and the Council.
I granted leave and ordered the application amended accordingly.
Background
Before I deal with the submissions made I shall state briefly
the background to the application. In February 2001 the
applicant received a letter from the Governor General of
Belize informing the applicant that the Governor General
had received three letters; two from attorney Lois Young
Barrow and one from the Belize Bar Association, which letters,
the Governor General said, were complaints against the applicant's
"continued tenure as a judge of the Supreme Court of
Belize." The letters which imputed corruption and immoral
conducts were forwarded to the applicant. The Governor General
stated in his letter that he was of the opinion that the,
"complaints should be referred to the Belize Advisory
Council under Article 98 subsection 5 of the Belize Constitution."
He further stated that the applicant was to, "note
that the same Article (subsection 6) empowers the Governor
General to 'suspend the justice from performing the function
of his office' but only if the question has been referred
to the Belize Advisory Council'." The applicant applied
to the Supreme Court, under Section 20 (1) of the Constitution
for, among other reliefs, declarations that he had been
or was likely to be deprived of his right to the protection
of the law guaranteed under S: 3 (a) of the Constitution
because the Governor General had already taken decision
to refer the question of the removal of the applicant to
the Council without acting fairly in accordance with the
rules of natural justice, and that the Governor General
took into consideration prejudicial and irrelevant matters
included in the letters of complaint. The Applicant asked
for damages occasioned and orders of the Court to quash
all proceedings for his removal under S: 98 based on the
complaint received, and for stay of suspension from office.
At the time the complaints had not yet been referred to
the Council and the applicant had not been suspended. The
learned Chief Justice, in a judgment dated 12.3.2001, refused
all the declarations prayed for, refused to grant any relief
and dismissed the case. On 14.3.2001 the applicant filed
appeal No. 1 of 2001 to the Court of Appeal of Belize, against
the judgment of the
Chief Justice and on 23.3.2001 he filed the application,
the subject of this judgment. The application has been amended
as stated above, and heard in Court on 11.4.2001.
The
Law on Stay and Jurisdiction of a Single Judge
The
law that authorises an application for stay of execution
when an appeal is pending is Order 2 r16 (1) (c) of
the Court of Appeals Rules Cap. 73 of Statute Laws of Belize
which states:
Mr.
Anderson opposed the submission of Mr. Lumor on both the
factual point that the relief asked for in Action No. 154
of 2001 was the same as the relief asked for in this application,
and on the point of law that a Supreme Court judge remains
a Supreme Court judge even when he exercises the jurisdiction
of a single judge of the Court of Appeal.
I accept
the submission of Mr. Anderson on the point of law that
when a judge of the Supreme Court sits to exercise the power
of a single judge of the Court of Appeal under O.
2 r17 (1) he sits as a judge of the Court of Appeal
for that purpose. I expand on that and state that when a
judge of the Supreme Court is seized of the jurisdiction
of a single judge of the Court of Appeal in a particular
matter, he is a single judge of the Court of Appeal for
the purpose of that matter. That is the logical extension
. Moreover, O. 2 r17 (1) must be read as complementing
and not conflicting with the main Act at section
3 (5) which provides:
"3
-
(5)
Any power excisable by a single judge of the Court may at
any time when there is no such judge present in Belize and
able to perform the functions of his office
be exercised by a justice of the Supreme Court as if the
justice were a judge of the Court."
The
Appeal is not Vexatious and Frivolous
Assuming that the applicant has asked for the same relief
in this application as well as in Action No. 154 of 2001,
my decision would be that this application and Action No.
154 of 2001 are not in the same Court, the Supreme Court.
The submission of Mr. Lumor is rejected to the extent that
it is based on the same relief being asked for from the
same court in two cases.
Alternative
decision on the point is that the subject matter of case
No. 154 of 2001, now before the Chief Justice, cannot be
included in the hearing of this application because the
facts have not been deposed to in an affidavit in support
or in opposition to this application, and parties do not
agree on the crucial fact about the relief asked for in
the two cases.
The
second question I address also touches on jurisdiction.
Mr. Lumor submitted that the decision of this Court to stay
execution in the circumstances of this case will be an academic
exercise because the appeal itself will, at the time of
hearing, be an academic exercise, as the Governor General
has already referred the question of removal to the Council
and suspended the appellant. Mr. Lumor went on to submit
that courts do not decide academic questions. He cited paragraph
18/19/22 in the 1999 Rules of Practice (England), the "White
Book."
Paragraph 18/19/22, cited by Mr. Lumor, is about striking
out pleading not about stay of execution pending appeal.
In any case, it has answer over-leaf at paragraph 18/19/22.
The case of Dan Pasquale v Customs and Excise Commissioners
[1990] 1 WLR 1108 CA is cited therein as an example
of an instance when court will allow an appeal to proceed
even though the appeal had been made academic because parties
had settled the dispute between them. I commend the effort
of Mr. Lumor, he raised a very important question in the
development of Constitutional Law in jurisdictions where
Constitutions are written. Declaratory judgments are becoming
common-place and some of them are in cases that the applicants
have not yet been wronged. For example, S: 20 of Belize
Constitution authorises a person to apply to the Supreme
Court if any of the provisions of Sections 3 to 19, "has
been, is being, or is likely, to be
contravened ..." Some important questions of public
interest have been and will continue to be decided even
in England when the judgments in which the questions arise
will no longer be of benefit to the litigants. I believe
an occasion will arise when the point raised will be dealt
with in detail.
Can
Action of Non-Party to the Appeal be Stayed?
An
important question somewhat connected with the preceeding
question occurred to me and it is this: The application
as amended seeks to stay action of the Council not of the
Governor General anymore, the Council was not a party in
Action No. 65 of 2001 in which judgment has been appealed,
is there any order(s) in the judgment appealed that may
be executed generally or against the Council in particular
so that application under O. 2 r16 (1) (c) may be made to
stay execution upon?
The judgment appealed never ordered that the Governor General
could proceed with his action under S: 98 of the Constitution
and indeed never ordered that the Council could proceed
to inquire into the question of the removal of the applicant.
The judgment merely refused to declare that the appellant's
right to the protection of the law as guaranteed under S:
3 (a) of the Constitution had been infringed upon or was
likely to be infringed upon, by the action then taken or
contemplated by the Governor General. Further the judgment
refused to grant reliefs asked for by the applicant, which
reliefs included damages for the initial action by the Governor
General, and stay of further action by the Governor General
and any proceedings of the Council, about removal of the
applicant.
As
far as making an order to stay, upon the judgment appealed,
which order may stay actions of the Council is concerned,
it is my view that the Court can make the order even if
the Council is not a party to the appeal or was not a party
to the case at trial. The reasons are: First the judgment
appealed refused to grant the orders asked for by the applicant.
One of the orders would have stopped the anticipated action
of the Council in the removal process. The applicant would
like to reverse that on appeal so that he gets, among others,
an order stopping action by the Council. Now he seeks to
obtain an order to stay action by the Council so that should
he be successful in the appeal, things will have not been
made worse by further actions of the Council while appeal
was pending determination. Secondly an order to stay execution
pending determination of appeal is in the nature of an injunction
aimed at preserving the subject matter of the case, the
appeal. In that view I have support in the judgment of Cotton
L. J. in the House of Lords (England) in, Wilson v
Church [1878] W 81/11 Ch D 5,76, the case cited
by Mr. Anderson on a different point. At page 458 Cotton
L. J. stated:
"I will state my opinion that when a party is appealing,
exercising his undoubted right of appeal, this Court ought
to see that the appeal, if successful, is not nugatory;
and acting on that principal, when there was an appeal to
this Court from the judgment of Mr. Justice Fry dismissing
the plaintiff's action altogether, and it was urged therefore
that this Court had no jurisdiction to stay the execution
of the order, we were of opinion that we ought to stay the
execution of a judgment in another action made by Mr. Justice
Fry, ordering the funds to be dealt with - that is
to stay, by granting an injunction against the trustees
to restrain them from parting with any portion of
the funds in their hands till the appeal was disposed of."
Applicant's
Appeal a Serious Appeal
In
an application for a stay of execution, which in this case
is a stay of further action by the Council, the Court has
to satisfy itself that the appeal is a serious appeal, not
merely filed to buy time or, "to deprive a successful
litigant of the fruits of his litigation ..." - see
Monk v Bartram [1891] 1 Q B 346
It has
been contended by the respondents that this application
is vexatious or frivolous because it repeats request for
relief in another case, Action No. 154/2001. It has, however,
not been contended that the grounds of appeal are vexatious
or frivolous. In my view the grounds, for example, that
the learned Chief Justice erred in: (1) not recusing himself;
(2) allowing joinder of the Bar Association; (3) finding
that the Governor General had not made up his mind in referring
the question of removal before he heard the applicant; are
tenable and not frivolous. That is not to say that the grounds
will succeed or even that the grounds have good prospect
of success. We have to bear in mind that an appeal, especially
when leave of court is not required, is a right and should
not be subjected to strict standard of evaluation before
the time to decide it has come.
Order
to Stay is Discretionary
In
deciding the application I have in the end to bear in mind
that granting an order to stay execution is a discretionary
decision, and that the discretion to grant will
be exercised only when special circumstances exist
in the particular case. Mr. Anderson made remarkable
brilliant submission on the point of law. He of course,
was limited by the facts of the case. The only special fact
that Mr. Anderson could and pointed out in the case is that
if the Council is allowed to proceed with the result that
the applicant is removed from office, the appeal will be
rendered nugatory, should the appeal succeed.
To identify
any further special circumstances in the applicant's case
let us look at what he will suffer if a stay is not granted.
He may be removed from office or he may be cleared of any
wrong doing. In the latter case, his suspension will be
lifted. In the former, his loss will be monetary in the
first place, and that is compensatable by an award of damages
(payment of money) which is likely to include his full remuneration
for the period he would have held office, which might be
the period up-to retirement. Some incident of gratuity or
pension might also be part of the damages. Alternatively
the applicant could demand that he be reinstated. There
is much to urge in that, given that his post enjoys tenure
directly protected by the Constitution. It may be contended
that the reputation of the applicant could be damaged if
stay is not granted. In the event that he is successful
in his appeal, his reputation will be fully restored by
that fact.
Application
Dismissed
I am
unable to see any special circumstances or irreversible
loss in the applicant's case as is the case in Wilson
and Church and the other cases cited by Mr. Anderson.
I decline to exercise discretion to grant stay pending the
determination of the appeal. The application is dismissed.
Costs
The
respondents did not ask for costs, in fact they did not
file any affidavit in opposition to the application. Costs
will be costs in the appeal.
Delivered
this Tuesday the 24th day of April, 2001
At
the Supreme Court, Belize City, Belize.
Sam Lungole Awich
Judge