Paradise Games Ltd (d/b/a Paradise Games) v Attorney General; Deveaux (d/b/a Percy Web Café) et Al v Attorney General

• Jurisdiction: Bahamas
• Judge: Barnett, C.J.
• Judgment Date: 09 April 2013
• Court: Supreme Court (Bahamas)
• Docket Number: CLE/GEN 150/50 of 2013; CLE/GEN 151 of 2013
• Date: 09 April 2013

Supreme Court

Barnett, C.J.

CLE/GEN 150/50 of 2013; CLE/GEN 151 of 2013

Paradise Games Limited (d/b/a Paradise Games)

and

Attorney General

Deveaux (d/b/a Percy Web Café) et al

and

Attorney General

Appearances:

Mr. Alfred Sears, Mr. Gregory Cottis and Mr. Jeffry Lloyd for Paradise Games Ltd

Mr. Wayne Munroe and Miss Italia Cartwright for Pete Deveaux et al

Mr. Loren Klein, Ms. Melissa Wright, Mrs. Darcel Williamson and Darren Henfield for the defendants

Injunctions - Interlocutory relief — Applications for interlocutory injunctive relief — Balance of convenience — Whether serious issue to be tried — Whether damages adequate remedy for any loss suffered.

Barnett, C.J.

1 These two actions are being heard together.

2 By generally endorsed writs both issued on the 4th February, 2013, the plaintiffs bring these actions.

3 In the first action brought by Paradise Games Limited, (“the first action”) the plaintiff claims the following relief:

1

Damages 2. Damages for breaches of its fundamental rights under, inter alia, Article 26 of The Constitution. 3. An Injunction to restrain the Attorney General, the Minister of National Security, the Minister of Tourism, the Minister of Finance and the Commissioner of Police whether by themselves or their servants from taking any action howsoever to prevent, impede, hinder or otherwise interfere with the business of the plaintiff which forms part of the litigation to be decided by the Court pending the hearing and determination of this action or until further order. 4. A Declaration that the provisions of the Lotteries and Gaming Act do not prohibit the operations of Paradise Games Limited as set forth in its business licence. 5. A Declaration that the plaintiff had a legitimate expectation that legislation would be passed to regulate and tax the Web CafÉ industry in The Bahamas in reliance on the conduct of the Ministry of Finance in collecting information during 2010 about the operations of and meetings with the representatives of the Web CafÉ industry, with the understanding that all police raids would be suspended and that the said legislation would be passed. 6. A Declaration that the announcement by Prime Minister, the Right Honourable Perry Christie, contained in the Press Release dated the 29th January 2013, that “In keeping with my Government's commitment to abide by the will of the electorate as expressed on Monday's referendum, it has now become necessary to effect the closure of all web-shop gaming operations in The Bahamas” is ultra vires Section 7 of the Constitutional Referendum Amendment) Act, 2012 which states that the holding of non-constitutional referendum is merely for the purpose of obtaining the views of the electorate on any matter of national importance and is, therefore, not legally binding on the Government to give effect to the results of the said referendum. 7. A Declaration that the general prohibition, contained in the Lotteries and Gaming Act, preventing citizens and permanent residents of The Bahamas from obtaining permanent gaming licences and in participating in gaming is ultra vires Article 26 of the Constitution in that such an absolute prohibition, on the basis of nationality, is discriminatory in itself and its effect and exceeds the allowable conditions of “restrictions” and “disabilities”, contained in the derogation clause of Article 26 (4) (e) of the Constitution. 8. Interest. 9. Such orders, writs, or directions, pursuant to Article 28 of the Constitution as the Court may consider appropriate for the purpose of enforcing or securing the enforcement of any right or freedom to the protection of which the plaintiff is entitled. 10. Costs. 11. Further or other relief that this Honourable Court deems fit.

4 In the second action brought by Pete Deveaux and others (“the second action”) the plaintiffs claim the following relief:

1

A Declaration that on a true construction of the Lotteries and Gaming Act, Chapter 387 of the Revised Laws (hereinafter “the Act”) the business activities of the plaintiffs do not fall to be regulated and licenced pursuant to the provisions of the Act or any other Act of Parliament or subsidiary legislation. 2. Further or in the alternative, a Declaration that having regard to the interaction between the plaintiffs and officials of the Ministry of Finance in 2010 the plaintiffs have a right to operate their business either unmolested by officials of the Executive Branch of Government or alternatively that they are deemed to have been licenced pursuant to the Act as a result of: i) The information given to the Ministry of Finance; together with ii) The terms of the Business Licence Act; together with iii) The subsequent issuance to the plaintiffs of a business licence to the plaintiffs. 3. Further or in the alternative, a Declaration that the provisions of the Act were/are, directly in their terms or indirectly in their application, inconsistent with Section 1 of the Schedule to the Bahama Islands (Constitution) Order in Council 1963 (hereinafter “the 1963 Constitution”). 4. Further or in the alternative, a Declaration that the provisions of the Act are, directly in their terms or indirectly in their application to the plaintiffs as individual citizens and to the business of the plaintiffs, inconsistent with Article 15 of the Schedule to the Bahamas Independence Order 173 (hereinafter “the 1973 Constitution”). 5. Further or in the alternative, a Declaration that the provisions of the Act are, directly in their terms or indirectly in their application, inconsistent with Sections 7, 8, 10 and 12 of the 1963 Constitution, notwithstanding Section 12 (4)f. 6. Further or in the alternative, a Declaration that the provisions of the Act are directly in their terms or in indirectly in their proposed application to the plaintiff's as individual citizens and to the business of the plaintiffs, inconsistent with Articles 21, 22, 24 and 26 of the 1973 Constitution, notwithstanding Article 26(4)d or e. 7. Further and other relief as the court deems just. 8. That provisions be made for the costs of these proceedings.

5 No statement of claim has yet been served.

6 Five days before the issue of the writs, the plaintiffs in both actions sought and obtained a Conservatory Order in the following terms:

The Attorney General, the Minister of National Security, the Minister of Tourism and the Commissioner of Police shall not take any action howsoever from preventing, impeding, hindering or otherwise interfering with the business of the Intended plaintiff which forms part of the litigation to be decided by the Court pending the hearing and determination of the application for an injunction or until further order, and a conservatory order is hereby granted in the terms supplied.

7 The Conservatory Order was conditional upon the plaintiffs undertaking to:

1

To issue and file documents commencing the intended action herein; 2. To issue and file a summons and affidavit in support of an application for an injunction; and 3. To serve copies of the said documents on the Intended defendants, together with this Order.

8 The plaintiffs having issued the Writs now apply for interlocutory injunctive relief.

9 The application in the first action is for an injunction in the following terms:

…that the defendants be restrained by injunction, whether by itself or by its servants or agents or otherwise, from preventing, impeding, hindering or otherwise interfering with the business of the plaintiff or any similar action until the trial of this action or further order.

10 In the second action, the interlocutory injunction sought is a little different. It is for an order in the following terms:

that the Attorney General, the Minister of National Security, the Minister of Tourism and the Commissioner of Police shall not take any action howsoever from preventing, impeding, hindering or otherwise interfering with the business of the Intended plaintiffs which forms part of the litigation to be decided by the Court pending the hearing and determination of the application for an injunction or until further order.

11 The defendants have also applied to have the Conservatory Order set aside.

12 As no statement of claim has yet been served, it is necessary to ascertain the nature of the plaintiffs' case and the basis for the applications for interlocutory injunctive relief from their writs and affidavits.

13 The affidavit filed on the 6th February, 2013 in the first action on behalf of Paradise Games was in the following terms:

I, KEVIN ASHBERT KNOWLES, of the Western District of the Island of New Providence one of the Islands of the Commonwealth of The Bahamas make oath and say as follows:

• 1. That I am the President and Director of Paradise Games Limited (“Paradise”) and I am authorized to make this Affidavit on behalf of Paradise in support of an application for an Injunction. That I have worked in the Web CafÉ industry since 2001.

• 2. Paradise was incorporated on the 14th March, 2012 in The Bahamas, pursuant to the Companies Act, 1992, as a company limited by shares. Paradise is currently in good standing

• 3. The business operations of Paradise are licensed by the Business Licence Division of the Ministry of Finance to provide Internet Cafe/Services, Web CafÉ, and Restaurant and Bar. Paradise has a total of twenty-six (26) licenced Web CafÉ establishments on the following Islands within the Commonwealth of The Bahamas: 16 in Nassau; 3 in Freeport; 3 in Abaco; 1 in Andros; 1 in Exuma; 1 in Long Island; and 1 in San Salvador.

• 4. The Business Licence Division of the Ministry of Finance certified, by letter dated the 12th June, 2012, that Paradise “is in compliance with the Business Licence Act, 2010 through March 31st, 2013, with all the rights and privileges pertaining to a valid business licence”.

• 5. Paradise currently has 160 permanent full-time Bahamian...