Contractor-General of Jamaica v Cenitech Engineering Solutions Ltd

• Jurisdiction: Jamaica
• Judge: Phillips JA,Brooks JA,Sinclair-Haynes JA
• Judgment Date: 18 December 2015
• Neutral Citation: JM 2015 CA 130
• Docket Number: APPLICATION NO 76/2014
• Court: Court of Appeal (Jamaica)
• Date: 18 December 2015

Between:

The Contractor-General of Jamaica

Applicant

and

Cenitech Engineering Solutions Limited

Respondent

[2015] JMCA App 47

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

The Hon Mrs Justice Sinclair-Haynes JA (AG)

APPLICATION NO 76/2014

JAMAICA

IN THE COURT OF APPEAL

CIVIL PROCEDURE - Judgment - Application for permission to appeal - Whether learned trial judge had jurisdiction to grant stay where judge granting leave to pursue judicial review did not so order - Whether learned trial judge had power to grant injunction not applied for - Whether stay of proceedings necessary - Criteria for grant of leave to appeal - Civil Procedure Rules 2002, Rules 26.1(e), 56.4 and Parts 25-27

Mrs Jacqueline Samuels-Brown QC, and Miss Gillian Pottinger , Miss Cammeca Cookhorn and Lorenzo Eccleston instructed by Firm Law for the applicant

Abraham Dabdoub and Mrs Karen Dabdoub Harris instructed by Dabdoub, Dabdoub & Co for the respondent

Phillips JA

1 The Contractor General (the applicant) launched investigations into the registration of companies with the National Contracts Commission (NCC) and the award of contracts to these companies under the Barracks Relocation Project and the Jamaica Development Infrastructure Programme (JDIP). One company being investigated was Cenitech Engineering Solutions Limited (the respondent) who filed an application for leave to apply for judicial review and also sought, inter alia: (i) a stay of the proceedings being conducted that investigated its registration with the NCC and the award of contracts to it under the Barracks Relocation Project and JDIP and (ii) an injunction preventing further investigations into these same issues until the hearing of its judicial review application. The application for leave to pursue judicial review was granted by P Williams J (as she then was) and McDonald-Bishop J (as she then was) granted a stay of the proceedings being conducted by the applicant and restrained the applicant from further investigating these said matters until the determination of the respondent's application for judicial review or until further orders.

2 The applicant sought permission to appeal the judgment of McDonald-Bishop J on the grounds that inter alia: (i) the learned judge had no jurisdiction to grant a stay where the judge granting leave to pursue judicial review did not so order; (ii) the learned judge had no power to grant an injunction that was not applied for; (iii) the proceedings being conducted by the applicant could not be subjected to a stay; and (iv) in all the circumstances a stay of the proceedings was unnecessary.

Background

3 The facts stated herein were gleaned from the affidavits of Clava Mantock Junior filed on 30 January 2014, the affidavit of George Knight filed on 4 March 2014 and the affidavit of Tania Bell filed on 4 March 2014, all filed in support of the ex parte application for leave to apply for judicial review and the affidavit of Gillian Pottinger filed on 13 May 2014, in support of the notice of application for leave to appeal McDonald-Bishop J's decision.

4 The applicant is an independent commission of Parliament established by section 3 of the Contractor-General Act who monitors, inter alia, the award and implementation of government contracts. He also monitors the grant, issue, suspension or revocation of contractors' licences.

5 The respondent is a company duly incorporated under the Companies Act, with its registered office at 14a Central Avenue, Kingston 10 in the parish of Saint Andrew. Its principal business is building construction, civil engineering works, pipe laying works, general road works and interior construction works.

6 In an invitation to tender dated 1 September 2013, the Government of Jamaica through the Ministry of Agriculture and Fisheries (the Ministry) sought tenders for the award of a contract in respect of the Barracks Relocation Project for the proposed construction of houses at Springfield, Clarendon; Stokes Hall, Saint Thomas and Hampton Court, Saint Thomas. To be eligible for such an award, the contractor had to be registered with the NCC at the time of the tender in the category of grade 1 for building construction or system building and should also possess a valid tax compliance certificate.

7 The respondent had been registered with the NCC after having applied for registration in December 2012 and May 2013 in various categories and grades. A certificate of registration was thereafter issued to the respondent by the NCC dated 18 January 2013 and which expired on 16 July 2014, in various categories and grades, including “grade 1 in building construction”.

8 On 27 September 2013, the respondent submitted a tender for three separate work packages at Springfield, Clarendon; Stokes Hall, Saint Thomas and Hampton Court, Saint Thomas under the Barracks Relocation Project. The NCC recommended the award of the said three contracts under the Barracks Relocation Project to the respondent and this was later ratified by Cabinet on 16 December 2013.

9 On that same date (16 December 2013), the respondent received an email from the NCC containing a letter dated 12 December 2013, which advised the respondent that its certificate of registration had been revoked for misrepresentations made on its application for registration dated 14 December 2012 which were uncovered in an investigation exercise conducted by the applicant. The NCC also advised the Ministry and Cabinet of the revocation of the respondent's registration certificate and its reasons.

10 Having received that notification, the Ministry then treated the respondent as being ineligible for the award of the contract and so did not formally communicate to it that it had accepted their tender. Cabinet then took a subsequent decision to revoke the approval of the award to the respondent. The Ministry then awarded the contract to Chin's Construction Company Limited with NCC's and Cabinet's approval.

11 The applicant had launched an investigation into the award of contracts to various companies including the respondent under the Barracks Relocation Project and JDIP. During the course of these investigations, on 6 December 2013, officers acting on behalf of the applicant, visited the registered office of the respondent and sought information regarding its registration particulars and financial capabilities.

12 On 10 December 2013, Mr George Knight, director of the respondent, was summoned to appear before the applicant to provide evidence with regard to the recommendation for the award of contracts in respect of the Barracks Relocation Project and JDIP. Thereafter, a number of other employees of the respondent were summoned by the applicant, on different dates, to attend hearings in order to facilitate investigations into the award of contracts under the Barracks Relocation Project and JDIP.

13 It is clear from the transcript of the proceedings that enquiries were being made into the respondent's application for registration and they continued even after the respondent's registration certificate had been revoked. The respondent took issue with these hearings and the revocation of its registration and so, made an ex parte application dated 30 January 2014 for inter alia: (i) leave to apply for judicial review; (ii) that the grant of leave operate as a stay of the judicial hearing being conducted by the applicant; and (iii) an interim injunction restraining the applicant from continuing to hold hearings into matters concerning the registration particulars of and the award of contracts to the respondent under the Barracks Relocation Project and JDIP. This application was made against the NCC, the applicant, the Minister of Agriculture and Fisheries, and the Attorney-General.

14 The application was heard by P Williams J who, in an order dated 5 February 2014, granted leave to apply for judicial review and further ordered that the application for a stay of the judicial hearing and other interim relief be fixed for the first hearing of the claim on 3 March 2014.

15 The respondent thereafter filed a claim against the applicant, the NCC, the Minister of Agriculture and Fisheries and the Attorney General for judicial review, damages and various declarations. This claim is presently before the Supreme Court.

Application for interim relief

16 The application for the stay of the judicial proceedings and other interim relief was first heard by McDonald-Bishop J on 12 March 2014. The NCC, the Minister of Agriculture and Fisheries and the Attorney General were later removed, as defendants, from the application for the stay of proceedings and other interim relief at the respondent's request.

17 During the application for the stay and other interim relief, McDonald-Bishop J explored a number of issues including: (i) jurisdiction to grant a stay and other interim relief; (ii) whether or not the hearings being conducted by the applicant were amenable to a stay; (iii) the statutory context within which the applicant had been conducting his investigations and hearings; (iv) the relationship between a stay and an interim injunction in judicial review proceedings; (v) the availability of other protection to the applicant; and (vi) whether interim relief should be granted to the respondent.

18 Although not specifically addressed in the submissions of the applicant's counsel, McDonald-Bishop J raised the issue as to whether she had jurisdiction to order a stay in circumstances where rule 56.4(9) of the Civil Procedure Rules, 2002 (CPR) states that a judge must direct whether or not the grant of leave to apply for judicial review operates as a stay. P Williams J however, did not so direct. McDonald-Bishop J in citing rules 56.13(1) and 26.1(2)(v) of the CPR and section 48(g) of the Judicature (Supreme Court) Act (JSCA) found that she had the power...