Attorney General v Tobago House of Assembly

• Jurisdiction: Trinidad & Tobago
• Judge: Boodoosingh, J.
• Judgment Date: 30 April 2014
• Neutral Citation: TT 2014 HC 191
• Docket Number: CV 135 of 2013
• Court: High Court (Trinidad and Tobago)
• Date: 30 April 2014

High Court

Boodoosingh, J.

CV 135 of 2013

Attorney General

and

Tobago House of Assembly

Appearances:

Mr. Alvin Fitzpatrick SC, Mrs. Lesley Lucky-Samaroo, Mr. Martin George and Ms Tamara Maharajh instructed by Ms Lesley Almarales and Ms Rishma Ramrattan for the Claimant

Mr. John Jeremie SC, Mr. Kerwyn Garcia and Mr. Stuart Young instructed by Ms Kahaya Nanhu for the defendant

Statute - Interpretation — Whether the Tobago House of Assembly pursuant to Tobago House of Assembly Act, Chap 25: 03 had the power to enter into agreements for the purpose of developing and financing construction without the consent of the Minister of Finance — Whether upon an examination of the Central Tenders Board Act, Chap 71: 91 the Tobago House of Assembly should have been permitted to enter into agreements for the purpose of developing and financing construction projects — Whether the arrangements were subject to the provisions of the Central Tenders Board Act — Accountability mechanism — sections 25 (1) and (2), 28, 30, 31 and 75 of the Tobago House of Assembly Act and sections 2, 3 (1), 4, 20 (1), 20 (3) and 26 of the Central Tenders Board Act.

Boodoosingh, J.

1 This claim concerns the powers of the Tobago House of Assembly (THA) under the Tobago House of Assembly Act, Chap. 25:03 (the THA Act). This matter started as a judicial review claim seeking the review of what has commonly come to be called the “Milshirv project” for the construction of an administrative complex to house certain departments of the THA. The project itself was challenged. Two other parties were involved, Milshirv Properties Limited and First Citizens Bank.

2 By a consent order entered into by all the parties, that judicial review matter was converted to a construction/ interpretation summons to consider the powers of the THA in relation to a specific type of arrangement called BOLT.

3 Each side filed a statement of facts. At the hearing the issue for decision was enlarged to:

• 1. Whether upon a true construction of the THA Act the THA is not empowered to enter into BOLT arrangements for the purpose of developing and financing construction without the consent of the Minister of Finance and/or outside the statutory framework in the THA Act for the control of expenditure; and

• 2. Whether upon a true construction of the Central Tenders Board Act (the CTB Act), the THA is not empowered and/or it is unlawful, illegal and void for the THA to enter into BOLT arrangements for the purpose of developing and financing construction/ projects other than in accordance with the CTB Act.

FACTS

4 The parties helpfully agreed on the nature of the BOLT arrangement (as described and summarised at paragraphs 7 to 11 of the defendant's unagreed statement of facts). The term is an acronym for “Build, Own, Lease, Transfer” and it, essentially, is an arrangement for the purpose of developing and financing construction projects. It can be described as non-debt based form of financing for the end user whereby a private or public sector client (in this case the THA) gives a concession to an entity to build a facility, own the facility, lease the facility to the client, then, at the end of the lease period, to transfer the ownership of the facility back to the client. The client pays for the facility in the form of lease rent over an agreed period of time. The project is thus financed by the entity and constructed. The THA gets use of the facility during the lease and the land and facility is transferred back to the THA at the end of the lease.

5 One of its main advantages is that the entity contracted by the client has the responsibility to raise the project financing during the construction period. This permits the client to utilise recurrent expenditure to pay for the facility over a period of time as opposed to upfront capital expenditure. After construction, the client leases the facility at an agreed rent for a fixed period of time. These lease/rent payments are the methods of repaying the private entity for the investment. At the end of the lease period, the ownership of the facility is transferred back to the client and the client gets an asset it has paid for over an agreed period while having had full use and occupation of the facility in the meantime.

6 It is not in dispute that the Milshirv project, which was the initial subject of this claim, is an example of a BOLT arrangement which the THA entered into around November 2011 for the construction of the Office Complex for the Division of Agriculture, Marine Affairs, Marketing and the Environment (the DAMME Administrative Complex).

PRELIMINARY POINT

7 In replying to the Attorney General's submissions Mr. Jeremie SC for the THA submitted that the matter had now become hypothetical or academic since there was no specific factual backdrop to the matter. There was no specific BOLT arrangement or issue in dispute between the parties.

8 He cited three cases in particular to advance his submission. These were Lewis v. Dempster and Fleming [2002] EWHC 3138; Padden v. Arbuthnot Pensions & Investments Ltd [2004] EWCA Civ 582; and R v. London Borough of Waltham Forest [2009] EWHC 1097. These cases highlight that the Court will generally decline to entertain an academic or theoretical question which has no practical application or decide issues upon facts which have not arisen.

9 While there is some force in what Mr. Jeremie says that there is no dispute to be resolved, it remains clear that both the Attorney General and the THA disagree on whether the BOLT arrangement for building construction projects requires the approval of the Cabinet or the Minister of Finance. Further, they dispute whether such arrangements are subject to the provisions of the Central Tenders Board Act, Chap 71:91 (CTB Act).

10 Both issues are issues of public interest and involve distinct points of statutory construction that have arisen in the past and may no doubt arise again. As noted at paragraph 24 of the London Borough case, Lord Slynn in R v Secretary of State for the Home Department ex parte Salem [1999] 1 AC 450 stated that:

“the discretion [of the Judicial Committee of the House of Lords] to hear disputes, even in the area of public law, must be exercised with caution and appeals which are academic between the parties should not be heard unless there is good reason in the public interest for doing so as for example (but only by way of example) where a discrete point of statutory construction which does not involve detailed consideration of the facts and where large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.”

11 It is noted that although what was said in the Salem case related specifically to the Judicial Committee of the House of Lords, there is no reason why this should not apply with equal force to other Courts.

12 I am of the view that although now academic, the circumstances identified in the Salem case are met in this matter. I will therefore adopt the approach of the Court in the case of Lewis (cited above) and give my views on the matter, for what they are worth, in case it affords any useful guidance for the parties in any future litigation or construction endeavour — see paragraph 31 of the Lewis judgment.

FIRST QUESTION

13 The parties agree that as a matter of general law, the THA, being a corporation established by statute, has only such powers as are conferred on it by statute, or as may fairly be regarded as incidental to or consequential on them — see the judgment of Pennycuick J in Attorney General v. Crayford Urban District Council [1962] Ch. 246. In determining whether a power is incidental, the provisions of the statute which confer and limit its functions must be considered. The power must not merely be convenient or desirable or profitable, but must arise by reasonable implication from the language of the legislation: see Hazzel v. Hammersmith and Fulham London Borough Council [1992] 2 A.C. 1 at 31E. Further, the context in which the powers are to be exercised and the purpose and powers of the Act and the THA as a whole, must be considered - Credit Suisse v. Allerdale Borough Council [1997] Q.B. 306.

14 The THA Act sets up the THA to govern certain aspects of the affairs of Tobago. Section 25 of the Act provides:

25. (1) Without prejudice to section 750) of the Constitution, the Assembly shall, in relation to Tobago, be responsible for the formulation and implementation of policy in respect of the matters set out in the Fifth Schedule.

15 Section 75(1) of the Constitution provides:

75. (1) There shall be a Cabinet for Trinidad and Tobago which shall have the general direction and control of the government of Trinidad and Tobago and shall be collectively responsible to Parliament.

16 These responsibilities set out in the Fifth Schedule of the THA Act include as follows:

• i. Finance (the collection of revenue and the meeting of expenditure incurred in the carrying out of the functions of the Assembly);

• ii. State Lands;

• iii. Land and marine parks;

• iv. Public buildings;

• v. Tourism;

• vi. Agriculture;

• vii. Fisheries;

• viii. Food production;

• ix. Infrastructure, including air and sea transportation, wharves and airports and public utilities;

• x. Industrial Development;

• xi. The Environment;

• xii. Housing.

17 Section 25(2) of the Act further provides:

25. (2) For the better performance of its functions, the Assembly is hereby empowered to do all such acts and take all such steps as may be necessary for, or incidental to the exercise of its powers or for the discharge of its duties and in particular the Assembly may-

• (a) devise mechanisms to ensure the protection and security of property, buildings, or other assets under its control;

• (b) enter into such contracts as it deems fit for the efficient discharge of its functions;

• ...