Bahamian Outdoor Adventurer Tours Ltd v R

• Jurisdiction: Bahamas
• Judge: Lyons, J.
• Judgment Date: 06 April 2000
• Court: Supreme Court (Bahamas)
• Docket Number: FP 28 of 2000
• Date: 06 April 2000

Supreme Court

Lyons, J.

FP 28 of 2000

Bahamian Outdoor Adventurer Tours Limited

and

R

Case References: Shangrila (1982) Limited v. Grand Bahama Port Authority Limited & AG (N154/84); Commonwealth Brewery Limited v. AG & Others (No. 14/1997); Sandra Hepburn & anor v. Comptroller of Customs & anor (FP249 of 1995); R v. Comptroller of Customs ex parte Callendars & Co (FP83 of 1999); Re: Ruling of Election judge(1989) 40 W.I.R. 66; R v. Whitaker[1914] 3 K.B. 1283; Hall v. Bermuda Bar Council(1983) 33 W.I.R. 69; Inland Revenue Commissioner and Attorney General v. Lilleyman and others(1964) 7 W.I.R. 496; Metropolitan Properties Co (FGC) Ltd v. Lannon[1968] 3 All E.R. 304; R v. Sussex JJ, ex parte McCarthy[1924] 1 K.B. 256; R v. Barnsley County Borough Licensing JJ, ex parte Barnsley and District Licensed Victuallers’ Association[1960] 2 Q.B. 167; Sadovnik and Another v. Charles Kellerman Ltd(1960) 3 W.I.R. 119; R v. Sutherland JJ[1901] 2 K.B. 357.

Judicial Review - Order 53 Rules of the Supreme Court — Separation of powers — Bias — Whether judges included in the definition of “public offices” under the agreement between the plaintiff and the defendant were entitled to reimbursements.

Lyons, J.

1 This matter comes before me per medium of an application under Order 53 for judicial Review. There is also, as part thereof, an application for relief pursuant to the Articles of our Constitution. Our Constitution is the Supreme Law. Adherence to its terms form the very foundation stone of our democracy.

2 Crucial to our Constitution and the very fabric of our Bahamian society is the Doctrine of the Separation of Powers. This doctrine seeks to ensure the independence of the three arms of Government, the Legislature, the Executive and the Judiciary so that, through the processes of accountability, our precious democracy is maintained and protected.

3 Also it is, to my mind, mandatory that, before a judge considers any matter in front of him, he must ensure that in the overall circumstances, when considered, do not infringe on that independence or the impartiality of the judiciary. In short, the judge must ensure that not only is justice done but that it is seen to be done.

4 The applicants herein are licensees under the provisions of the Hawksbill Creek Agreement. The Agreement, as is well known, forms the contract between the Grand Bahama Port Authority Limited and the Government of the Commonwealth of the Bahamas in respect of the development of Freeport, Grand Bahama. From this very Agreement (or more correctly, Agreements,) are derived important rights and obligations. These are crucial, not only to the parties to that Agreement ;and the licensees granted privileges thereunder, but, as a matter of cause and effect, to all Bahamians. In simple terms, by this agreement, the Government, representing all Bahamians (past, present and for the foreseeable future), has given to a privately owned company (The Grand Bahama Port Authority Limited) the undeniable right of control over, not only Freeport and neighbouring geographical areas of Grand Bahama, but over the lives and livelihoods of all persons of all ilk (Bahamians and foreigners) who, by virtue of advantages prescribed in the Agreement, have come to Grand Bahama, for whatever reason or task, to assist the Port Authority to achieve its objectives. Given that undoubted fact, an awesome responsibility falls on the shoulders of Government and the Port Authority to absolutely ensure that, the terms and objectives (and activities thereby undertaken), of the Agreement do not infringe the basic principles of our Constitution and our democracy. As a judge, it is also my task to be vigilant.

5 The Port Authority, it must be pointed out, is a company, the liability of which is limited to the extent of its assets and share-holding. It is, I am told, a privately owned company, in the sense that it is not statutory company. It was once, I am told, listed publicly on the stock exchange. It is no longer. It, I understand, is now in private hands. The Government is a minor shareholder. Thus, the Agreement effectively places important matters into private hands and thereby (save for contractual rights and somewhat limited minor shareholders rights), so goes accountability.

6 Recently decisions of our courts have opened the doors, as it were, to wider scrutiny via the Courts powers under Order 53(Or.53) (1) I have had one previous encounter with the Agreement (2) and its effect on dutiable motor vehicles. It was a decision which (in my view) did not need to much in depth investigation. I thought the issue was very clear. If it established anything at all (there has been some good natured banter about its “intellectual worth!”) it agreed with Mr. Justice Adams’ thoughts that the Agreement was subject to Or.53. In my superficial examination of the Agreement, I missed what is to my mind, a vital consideration.

7 This case now before me is significantly different. To get to a point of final decision, an investigation of the history of the Agreement (so as to gauge its true meaning and effect), is, in the context of this case, an absolute prerequisite.

8 In undertaking this task I found what I felt was a disturbing feature of the Agreement. (Before going on, I fully realise that I am about to make a ruling resulting from my own researchers, without giving the parties the opportunity to comment. That is a breach of the rules of natural justice - the audi alteram partem rule.”) As shall be seen however, it was my solitary task and responsibility. I am thus grateful for the parties forbearance. What I am about to say centres on Clause 1(5)(c) & (d) of the Agreement (as amended). Whilst counsel touched on this in submissions, it was not in regard to the matters which concern me now).

9 I went to the Report of the Royal Commission (31st March 1971), which resulted from a Warrant of Commission dated 9th September 1970 from the then Governor (as requested by the then Prime Minister) to the learned Commissioners. The task, inter alia, of the said Commissions were to examine the Agreement “in the interest of peace, order and good government throughout the Bahama Islands.” (5)

10 The Royal Commission had before it the same contractual agreements as do I, namely

11 (a) The First Agreement of 1955 (Chapter 241);

12 (b) The Second Agreement of 1960, (Chapter 242), and;

13 (c) The Third Agreement of 1966, (Chapter 243).

14 (Note: I have compared Chapters 241 to 243 inclusive with the Agreements referred to the Royal Commission as annexures 1, 2 and 3 to appendix B of the Commission report. There are some differences. Those referred to by the Commission appear to be the signed Agreements. I will thus refer to those. The Agreements being Chapters 241 to 243 inclusive should be corrected.)

15 Of course the Commission had much more material, but, for my purposes the above mentioned collectively embody “The Agreement” - i.e. the contract between the Government and the Port Authority.

16 The Agreement was by acts of the Executive as approved by the Legislature in the corresponding enabling Acts (The Hawksbill Creek, Grand Bahama (Deep Water Harbour and Industrial Area) Act and Amendment Acts (1) and (2) - Chapters 241, 242 and 243 respectively. Thus it can be said that two of the Arms of Government played their part (and have continued to do so since 1955) from Colonial regime, through the heady days of independence until today. All manner of political body of whatever persuasion has had its contract with this vitally important Agreement which places its mark on “the interests of peace, order and good government throughout the Bahama Islands.”

17 In paragraph 32 (page 12) of the Report, the following appears.

“By the First Agreement the Port Authority covenanted to complete the Port Project within three years as stated above and thereafter to maintain it in good repair and condition, keeping the channel and turning basin clear and free from obstructions; to provide such navigational aids and markers as should be requisite for the operation of the deep water harbour as a private port and as would comply with international practice; to use its best endeavours to promote and encourage the establishment of factories and other industrial undertakings and, in particular, such as would make use of the natural resources and products available at Hawksbill Creek like the limestone rock and pine timber; that on the completion of the Port Project and on the establishment of the first factory or industrial undertaking it would provide at its own expense in all respects educational and medical services and facilities o f a standard at least equal to that then being provided by the Government in the Out Islands o f the Bahamas or such higher standard as in accordance with circumstances from time to time the Governor in Council might reasonably require; that it would provide free of rent both living and office accommodation for, and supply at mutually agreed rates electrical current and such other utilities as the Port Authority might at any time operate in Freeport to, such officers and employees o f the Government as the Government might station in Freeport for the maintenance o f law and order, the administration o f justice, the general administration o f government, the collection o f customs duties and other revenue and the administration o f the customs and immigration departments, post offices and such other purposes as might be mutually agreed upon; that it would reimburse to the Government the annual cost o f providing the services and administrative activities referred to above, plus 25 percent which should be deemed to cover administrative overheads;…” (my emphasis)

18 That clause clauses in the First Agreement of which the Commissioners spoke (as emphasised reads:–

CLAUSE 1(5)

“Upon completion of...