Chairman, Aldermen, Councillors and Electors of the Region of Diego Martin and Attorney General v Edfam
| Jurisdiction | Trinidad & Tobago |
| Judge | Rampersad, J. |
| Judgment Date | 25 June 2015 |
| Neutral Citation | TT 2015 HC 205 |
| Docket Number | CV 2014-03319 |
| Court | High Court (Trinidad and Tobago) |
| Date | 25 June 2015 |
High Court
Rampersad, J.
CV 2014-03319
Claimant: Colin Kangaloo and Stuart Young and instructed by Anabelle Sooklal for the first named claimant
Defendant: Christopher Hamel Smith SC leading Jonathan Walker and instructed by Gregory Pantin
Civil practice and procedure - Application to have the claim struck out on the ground that the first named claimant had no locus standi to bring the claim on its own or alternatively that the injunction granted in the proceedings should be varied or discharged.
The defendant filed an application on 18 May 2015 seeking to have the claim struck out on the ground that the first named claimant has no locus standi to bring the claim on its own, or, alternatively, that the injunction granted in these proceedings be varied or discharged.
These proceedings were begun on the 9th of September 2014 by the first named claimant for certain relief as against the defendant which this court has already set out in its previous 2 judgments in these proceedings delivered on the 28th September 2014 (“the first judgment”) and the 24th October 2014 (“the second judgment”).
On the 19th of September 2014, the second named claimant was joined, upon his application, to protect the public interest. On the 15th of May 2015, upon the second named claimant's application, this court granted leave to the second named claimant to withdraw from the proceedings as the second named claimant was then of the view that it was no longer necessary to pursue the claim in the public interest. This court's decision on that point is under appeal and comes up for hearing on 6 July 2015. As it stands, however, the only claimant before this court, as a result of this court's said order, is the first named claimant.
Subsequent to the grant of the initial injunction in these proceedings, the issue of locus arose and was submitted upon by the first named claimant's and the defendant's respective attorneys in their submissions filed on 16 September 2014. Because of the joinder of the second named claimant, the point was rendered moot and the claim proceeded. It has now resurfaced as a result of the withdrawal of the second named claimant - the Attorney General.
In essence, the defendant submitted that, by operation of the Municipal Corporations Act (“the MCA”), the right to bring an action, such as in this case for the protection of a breach of public rights as opposed to a private right of action, lies with the Attorney General. Therefore, this claim could not have been brought by the first named claimant in its own name. In other words, as a matter of law, the first named claimant has no legal competence to initiate or pursue these proceedings. This is because the first named claimant is a statutory authority and its powers are limited to the powers conferred upon it under the MCA. In that regard, the defendant's attorney at law relied upon the following:
5.1. The provisions of the MCA itself - section 7A - which provides [See paragraph 16 of those submissions]:
“(i) That all rights or things in action that were previously vested in a County Council were vested immediately and/or were transferred and conferred upon the State;
(ii) That every Act giving power or authority to a former County Council shall be read as if in the Act the State were substituted for the former County Council; and
(iii) That legal proceedings pending immediately before 1st October 1991 by or against a former County Council may be continued on and after that day by or against the State as the party to the proceedings instead of that former County Council. “;
5.2. The Diego Martin Regional Corporation Vesting Order 2000 (L.N. 237 of 2001) - which vested the land, other property, rights, privileges, advantages, liabilities and obligations set out in the schedule thereto in the first named claimant. Those vested rights did not include the right to commence civil actions for the protection against public wrongs - related actions;
5.4. Gouriet v. Union of Post Office Workers [1978] A.C. 435; The First Named claimant
Essentially, the first named claimant has relied upon their September 2014 submissions and the authorities mentioned therein to suggest that the first named claimant does have jurisdiction to bring this claim.
The only local case cited was a decision of Jones 3, as he then was, in H.C.A. No. 1385 of 1995 - The Mayor Alderman and Citizens of the City of Port of Spain v. Thomas Peake and Company Limited.
In that case, the learned judge reviewed the authorities of Gouriet v. Union Post Office Workers & Ors [1977] 3 AER 70, Stoke on Tmile City Council v B&Q (Retail) Ltd. [1984] 2 AER 332 and Stafford BC v Elkenford Ltd [1977] 2 AER 519.
Reliance was also placed on:
9.1. 45(2) of the Interpretation Act, Chap. 3:01 9.2. Toronto (City) v Polai 8 D.L.R. (3d) 689
9.3. Markham (Town) v. Eastown Plaza Ltd [1992] 11 M.P.L.R. (2d) 134 (Ont. Gen. Div.)
9.4. City of Regina v. Craig William Cunningham 1994 Carswell Sask 211
9.5. Stafford Borough Council v. Elkenford Ltd [1977] 2 AER 519.
The first named claimant also went on to suggest that even if a specific power to commence an action was required by the first named claimant, the court should exercise its inherent jurisdiction to grant injunctive relief in the present circumstances as the first named claimant was seeking to protect the health and safety of approximately 240 children. Reliance was placed on the case of In re L (Vulnerable Adults with Capacity: Court's Jurisdiction) [2010] 3 WLR 445 as an illustration of the extent of that inherent jurisdiction.
In this regard, the first named claimant further submitted as follows:
“It cannot be right and/ or just for a moment, in the present factual circumstances, for the Honourable Court to find that the claimant has no locus to bring this application and to dismiss same. To do so, would be to condone deliberate and flagrant continuing breaches of the law by the defendant and furthermore, would be to deny the claimant to perform its statutory duty to protect the health and safety of the children.
In conclusion, it is submitted that despite the lack of a statutory provision similar to section 222 of the Local Authorities Act in England, the claimant is duty bound to seek the relief that it has sought, as it is obligated to protect the interests of those within its jurisdiction, and in this instances, the children and occupiers of the material building, and accordingly it has the locus to make this application. In the alternative, it is submitted that the Honourable High Court always has the inherent jurisdiction to grant the relief being sought in circumstances such as those presently before the Court where there is a deliberate, flagrant and continuing breach of the law and the health and safety of some 240 children is involved”
In the Canadian province of Ontario, section 486 of its Municipal Act, RSO 1960 provided:
“486. Where any by-law of a municipality or of a local board thereof passed under the authority of this or any other general or special Act, is contravened, in addition to any other remedy and to any penalty imposed by the by-law, such contravention may be restrained by action at the instance of a ratepayer or the corporation or local board”
This jurisdiction to commence action was relied upon in the Ontario cases mentioned above of Toronto (City) v Pole 8 D.L.R. (3d) 689 and Markham (Town) v. Eastown Plaza Ltd [1992] 11 M.P.L.R. (2d) 134 (Ont. Gen. Div.).
In discussing Polei, attorney at law for the first named claimant held on to the statement in the Ontario Court of Appeal by Justice of Appeal Schroeder who described section 7 of the Ontario Municipal Act, which established that the inhabitants of every county, city, town, village and township are a body corporate for the purposes of the Act. A parallel was drawn to the provisions of the local MCA at section 8 (1) which is similar in nature and buttressed his argument with section 45 (2) of the Interpretation Act to suggest that the court must do what is necessary to give effect to the intention of Parliament. However, the learned Schroeder JA firmly established at paragraph thirteen of his judgment that the action was brought pursuant to section 486 of the Municipal Act.
Likewise, in the Markham case, the strong sentiments expressed by the learned judge in that case were expressed in the context of this particular power to commence actions by the authority. Even though it was not expressly referred to, it can be reasonably inferred from the learned judge's reasoning and reliance upon cases such as Polei, that the case for the town of Markham, which falls within the province of Ontario and therefore under the Municipal Act, was built upon its statutory power and jurisdiction to commence actions.
In 1972, section 222 of the Local Government Act in the UK expressly empowered local authorities for the first time to bring civil proceedings in their own names in the public interest. That section provided:
“222. Power of local authorities to prosecute or defend legal proceedings.
(1) Where a local authority consider it expedient for the promotion or protection of the interests of the inhabitants of their area-
(a) they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name”.
After distinguishing the Gouriet case as being a failed attempt by an individual, as opposed to a local authority, as in the case at bar, to restrain the commission of a breach of a public...
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