Jesus Ignacio Russo Lucue v The Attorney General of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Madam Justice Eleanor Joye Donaldson-Honeywell |
| Judgment Date | 17 September 2020 |
| Neutral Citation | TT 2020 HC 263 |
| Court | High Court (Trinidad and Tobago) |
| Docket Number | Claim No. CV2020-02848 |
| Date | 17 September 2020 |
IN THE HIGH COURT OF JUSTICE
Port of Spain (Virtual)
Before the Honourable Madam Justice Eleanor Joye Donaldson-Honeywell
Claim No. CV2020-02848
Ms. Sophia Chote SC, Mr. Peter Carter, Mr. Asif Hosein-Shah and Ms. Nyree Alfonso, Attorneys-at-law for the Applicants
Mr. Justin Phelps and Ms. Michelle Benjamin, Attorneys-at-law for the 1 st Respondent
Mr. Justin Phelps, Mr. Christian Chandler and Ms. Michelle Benjamin, Attorneys-at-law for the 2 nd & 3 rd Respondents
The present ruling is in relation to the Without Notice application for Interim Injunctions filed on Sunday 13 September, 2020. The injunctive relief claimed was in relation to a search by the 2 nd and 3 rd Respondents of the Motor Tanker “Star Balboa” IMO No. 9186730 of the Port of Panama, Panama (“the vessel”) occupied by the Applicants as crew members. The search was ongoing since 3 September, 2020 and electronic devices owned by the Applicants were seized during the search. The Applicants sought inter alia to end this process, which they said infringed their constitutional rights.
The Court, upon reading the application, determined that the matter was not appropriate for ex parte determination and requested that the Respondents be served with the application. An inter partes hearing was set for 14 September, 2020. The matter came up for hearing and Counsel, Mr. Chandler appeared for the 2 nd and 3 rd Respondents while Ms. Carol Hernandez, Solicitor General and Ms. Natoya Moore appeared on behalf of the Respondents. The Respondents indicated that they had not been effectively served with the application and, as such, did not have sufficient notice to properly respond. The matter was therefore set to be heard the following day 15 September, 2020.
On 15 September, the matter again came up for hearing and on this date Counsel for the Respondents made an objection to the application being heard without the filing or formulation of any claim by the Applicants. The Applicants indicated that the failure to file a claim was as a result of the difficulties experienced in accessing their clients on board the vessel that is the subject of the search and this application. The Court therefore adjourned the hearing to 17 September, 2020 in order to allow time for the Applicants to file their fixed date claim and for the Respondents to file their responses to the application for injunctions thereafter.
These directions were complied with and the matter was fully ventilated with consideration of affidavit evidence and oral submissions on both sides on 17 September, 2020.
In making this decision, consideration has been given to the principles of equity governing the grant of interim relief. The approach applied was established in American Cyanamid Co v Ethicon Ltd [1975]1 all ER 504 at 510–511. That approach, with refinements specific to constitutional cases, was referred to in the RJR—MacDonald Inc v Canada (Attorney General) [F] 1 S.C.R. 311 case cited by Counsel for the Respondents and approved by the Privy Council as the applicable tri-partite test in the case of Seepersad v Ayers-Caesar [2019] UKPC 7 at paragraph 15, cited by counsel for the Applicants. The tri-partite factors to be considered will be addressed separately.
The first factor is whether there is a serious issue to be tried. What is required is not a prima facie case but just that the issue raised in the claim is not frivolous or vexatious. Usually, there is no need to embark on an examination of the merits or strength of the evidence and points of law to determine whether there is a serious case at this stage. Counsel for the Respondents argued, citing the RJR case at pg. 337, that in a case such as this, where the grant of the injunction will effect a final determination of the matter, a review of the merits is required. I agree and, as such, arguments were heard on both sides as to the merits of the respective cases. This hearing was not as comprehensive as would be more appropriate for the trial of the substantive claim but issues of relative strengths of the case were addressed in submissions.
The notice of application filed by the Applicants raises a number of issues throughout the filed document and supporting affidavit. The issues, in summary, concern the following:
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• The search warrant issued on 2 September, 2020 pursuant to Section 23(2) of the Dangerous Drugs Act 11:25 and executed on the vessel occupied by the Applicants on 3 September, 2020 was ultra vires as it only authorizes search of a dwelling house. The warrant was served on only one of the Applicants though all were treated as suspects. Accordingly, the ongoing search is unconstitutional.
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• The failure of the Respondents to provide a search warrant authorizing search of devices such as cell phones and laptops from the Applicants before they were seized was unlawful. The Applicants also contend that the items are being detained unreasonably for a longer time than is necessary. Their right to privacy and enjoyment of property is infringed. The seizure of these devices deprived the Applicants of the facility to communicate with their diplomatic representatives, the vessel's agent, legal representatives and relatives.
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• The Applicants were arrested, detained and denied access to legal representatives during the period of the search that has been ongoing since 3 September, 2020.
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• Daily searches over a continuing period were unconstitutional. This was so by...
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