Supreme Court
Action No. 11 of 1992
2nd March, 1992
Meerabux, J.

Mrs. D. Balderamos-Garcia for the applicant
Mr. M. Young for the respondent

Commencement of Proceedings - Notice of Originating Motion- Declaration - Injunction - Whether proceeding should have been commenced by Writ of Summons instead of Notice of Originating Motion - Supreme Court Rules - Whether the court is empowered to hear the application and make binding declarations of right - Application by Notice of Originating Motion proper procedure.

J U D G M E N T

On the 16th of January 1992, the applicant by an ex parte application sought an interim injunction against the Public Service Union of Belize, it servants or agents from seeking to enforce or to act on any decision of the Council of Management taken an the 11th of January, 1992.

The injunction was granted as prayed and on the 17th of January 1992, in accordance with the terms of the said order the applicant filed a Notice of Motion supported by an affidavit seeking -

(1) a declaration that the purported removal of the applicant from the position of the President of the Public Service Union of Belize and from the Council of Management of the Union ion or about 11th January, 1992, is ultra vires, illegal, void and of no effect, being in breach of the Constitution of the Union and in breach of the rules of natural justice;

(2) a declaration that the applicant herein continues and at all times remained the President of the Union;

(3) an injunction against the Union, its Servants or agents from seeking to enforce or to act on any decision of the Council of Management taken on the 11th January, 1992;

(4) such other relief as may be just.

This application was fixed for hearing an the 24th of January 1992, was adjourned by Consent to the 5th of February 1992, and eventually came up for hearing an the 19th and 20th of February.

At the commencement of the hearing counsel for the respondent submitted that -

(a) the application was misconceived and was commenced by a notice of originating Motion which is not authorised by the Rules of the Supreme Court or by Statute, furthermore that the proceedings should have commenced by a Writ of Summons;

(b) the proceedings are therefore a nullity and not merely an irregularity and should be dismissed with costs.

In support of these submissions counsel referred to 0.1 r.1 and 0.3 r.1 of the Supreme Court Rules which states as follows:

and urges that the word "action" means civil proceedings commenced by Writ.

"Use of originating notice of motion

An originating notice of motion may be used only where by the Rules of the Supreme Court or under any Act the proceedings in question I must or may be begun by originating Notice of Motion"

and lists examples where this is permissible in law.

"0.1 r.1

"All actions which, immediately before the 1st November 1875, were commenced by writ in the Superior Courts of Common Law at Westminster or in the Court of Common Pleas at Lancaster, or in the Court of Pleas at Durham, and all suits which, immediately before that date, were commenced by bill or information in the High Court of Chancery, or by a cause in rem or in personam in the High Court of Admiralty or by citation or otherwise in the Court of Probate, shall be instituted in the High Court of Justice by a proceeding to be called an action".

0.2 r.1

"Every action in the High Court shall be commenced by a writ of summons…..

"Practice originating Notice of Motion CH.D - where a statute provides for an application to the Court without specifying the manner in which it is to be made, and the Rules do not expressly provide for any special procedure such application way usually be madeb by originating motion".

The following cases were cited in support of this application:-

(b) In Re Engall's Agreement (1953) 1 W.L.R. 977
(c) Pierre v. M Banefo & others (1964) 7 W.I.R. 433
(d) In Re Pritchard dec'd (1963) Chan. D. 502

Counsel for the applicant in her reply submitted that no rules of the Supreme Court, or a Statute precludes the applicant from proceeding by Originating Notice of Motion and that the procedure adopted was the correct mode of coming before the Court. In support of this submission counsel referred to:-

"All other proceedings in and applications to the Supreme Court way, subject to these Rules be taken and made by petition, motion, or summons; or if the Court shall in any case so permit, by summary application without previous formality"

which she argues should be read with 0.1 r.1 and 0.3 r.1 and not be omitted; further, that the application satisfies 0.1 r.2.

"action" shall mean any civil proceeding commenced by writ or in such other manner as may be prescribed by rules of court and shall not include a criminal proceeding by the Crown".

Counsel argues that this definition is wide enough to include the present application by Notice of Originating Motion.

"no action dt proceeding shall be open to objection, on the ground that a merely declaratory judgment or order is sought thereby, and the court way make binding declarations of right whether any consequential relief is or could be claimed or not"

which she argues gives the Court wide jurisdiction to hear matters brought in any manner before it.

(4) The essence of what is submitteed is contained in 0.5 r.5 of the English Annual Practice 1970 which states:-

"Proceedings may be begun by originating motion or petition of, but only if, by these rules or by or under any Act the proceedings in question are required or authorised to be so begun".

Further that in 0.7 r.7(1) of the said English Annual Practice 1970 the "use of "Originating Summons" and the use of Originating Motion is quite analogous. It was argued that the applicant is entitled to use either the Originating Summons or Originating Motion.

"No action or other proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the Court way make binding declarations of right whether or not any consequential relief is or could be claimed."

Further that 0.15 r.17(3) of the said English Practice (1970) states that the application way be made by motion or summons.

It was argued that applications for declaratory reliefs way be made by Motion or Summons.

(6) In respect of the cases cited by counsel for the respondents it was urged that:-

(a) In Re Angels Agreement supra was a case in contract and had nothing to do with declaratory reliefs;

(b) Pierre v M Banefo & others supra is now overruled by the P.C. in Jaundoo v AG of Guyana (1973) 3 W.L.R. - 13 where that Court expressly approved the procedure now before this Court.

(c) Re Pritchard dec'd supra held that proceedings were a nullity ab initio if there is a fundamental irregularity and argues that the present procedure is not a fundamental irregularity.

It was further argued that the ruling of Singh J d/d 16/4/91 -

(d) In Re Manuel Esquivel v. Usher No. 359/90 approved the mode of application to the Court by Originating Summons seeking a declaration inter alia that the defendant was no longer entitled to occupy his seat in the Belize House of Representative;

Further that Re Meisler Lucius T.L.R. 1914 approves the procedure before the Court.

The issue I have to decide is whether the procedure adopted in this case by Notice of Originating Motion is authtrised by the Belize Rules of the Supreme Court or by Statute-

The Supreme Court Rules of Belize which sets out the form and commencement of Action must be carefully scrutinised. It states as follows in 0.1:-

I must now examine the "Interpretation of Terms" or rather the Interpretation Provisions of these Rules of the Supreme Court to ascertain the meaning of the word "action" referred to in 0.1 r.1 supra.

0.77 r.1 of these Rules interprets the word "action" as follows:-

"action" shall mean any civil proceeding commenced by writ or in such other manner as may prescribed by rules of court, and shall include a criminal proceeding of the Crown.

I therefore reject the definition of "action" in 0.3 r.1 cited by counsel for the respondent as limited to civil proceedings commenced by writ. The "Interpreation Terms" must prevail. I therefore find the term "action" embraces civil proceedings "commenced by Writ" and other proceedings commenced "by petition, motion or summons". I find no provisions in these Rules which forbid proceedings of this nature commencing in this manner.

Apart from these Rules no arguments have been advanced to me ir respect of any Statute Law forbidding these proceedings commencing in this manner.

I therefore find that there are no Rules of the Supreme nor Statute Law to forbid proceedings of this nature commencing by way of Originating of Motion.

I shall now examine 0.28 r.5 which was referred to by counsel for the applicant. 0.28 r.5 states:-

"No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not".

This provision is completely similar to 0.15 r.17 of the English Rules of the Supreme Court in the Annual Practice 1965 which states:

I find that these provisions empowers the Court to "make binding declarations of right whether or not any consequential is or could be claimed" and confirms the Court's powers in respect of ascertaining and determining the rights of parties.

I further find that the application before us concerns the right of the applicant as President of the Public Service Union of Belize and that this Court has the power to hear the application and to make binding declarations of right in this matter.

I now examine the various cases cited to the Court in support of the submissions.

(1) Re Engall's Agreement supra is a case which dealt with a contract for sale of land, the registration of land charges by the purchaser against the vendor, where the sale was not completed and the vendor applied by summons to have the registration of the charges vacated. The Court held that this was not the accpeted way of dealing with this matter nor the proper procedure to ascertain tha existence or non-existence of the contract. I find that this case has nothing to do with any declaration of rights and is irrelevant to this watter before the Court.

(2) Pierre v. M Banefe & others supra dealt with an alleged infringement of a Right enshrined in the Constitution of Trinidad and Tobago which provided for a redress without prescribing the mode for proceeding. The appellant applied by originating summons for redress of his Constitutional Rights and it was held by the Trinidad Court of Appeal that Originating Summons was neither required or permitted by Statute or the Rules of Court and was dismissed. However this decision was considered by the Privy Council in the case of -

(3) Jaundoo v. A.G. of Guyana supra which also dealt with an alleged infringement of a fundamental right under the Constitution of Guyana which also provided for redress but neither Parliament nor the Rules of the Supreme Court made provision in regard to the practice or procedure to cover applications tg the High Court. The applicant sought redress by an Originating Notice of Motion and the High Court dismissed the application holding that the Originating Notice of Motion was not the correct procedure and that the application should have been made by a writ of summons. The Court of Appeal dismissed the appellant's appeal and the Privy Council held inter alia that the right to appeal to the high Court for redress under the Constitution where neither Parliament nor the rule making authority of the Supreme Court made provision with respect to practice and procedure for the redress of infringement of rights under that Constitution, the High Court could be approached by an originating motion.

I find that the decision of the Privy Council overruled Pierre v. M Banefo & others supra.

I further find that these two cases deals with enfringements of Constitutional rights in the Constitutions of Trinidad and Guyana that Supreme law in both of those countries.

The matter before us has nothing to do with the constitution of Belize but rather the Constitution of the Public Service Union. Nevertheless, the reasoning is very compelling and persuasive.

(4) In Re Meisler Lucius and Bruning Limited supra the Board of Trade applied by Petition to the High Court in England for the appointment of a controller of a. company in circumstances envisaged by s. 3 of the Trading with the Enemy Act, 1914. Warrington J. held that where an Act of Parliament says that an application may be made to the Court and did not say in what form that application was to be made, as a matter of procedure it might be made in any way in which the court could be approached. There was no question about it that the court could be, and frequently was approached by originating motion"

I find that this view coincides exactly with the provisions of 0.1 r.2 supra of our Rules of the Supreme Court and that an Originating Notice of Motion is one of the ways by which our courts can be approached.

(5) In Re Manuel Esquivel v. Usher supra Singh J. inter alia cited with approval the dicta of Warrington J. In Re Meisler Lucius and Bruning Limited supra where he said "where the Act merely provi8des for an application and does not say in what form that application is to be made as a matter of procedure it may be made in any way in which the Court can be approached" and held that this coincides exactly with the provisions of our 0.1 r.2 the Rules of the Supreme Court. In this regard I concur with my colleague's ruling.

For the above reasons I reject the submissions made by counsel for the respondent and hold that -

the application before the court by Notice of Originating Motion is the correct procedure of coming before the Court satisfying 0.1 r.2 of the Rules of the Supreme Court.

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