Portmore Citizens Advisory Council and Portmore Joint Citizens Association v Ministry of Transport and Works and Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judge: G. SMITH, J.
• Judgment Date: 26 July 2005
• Judgment citation (vLex): [2005] 7 JJC 2601
• Date: 26 July 2005
• Court: Court of Appeal (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

BETWEEN

PORTMORE CITIZENS ADVISORY COUNCIL

1 ^ST CLAIMANT

AND

PORTMORE JOINT CITIZENS ASSOCIATION

2 ^nd CLAIMANT

AND

MINISTRY OF TRANSPORT AND WORKS

1 ^ST RESPONDENT

AND

THE ATTORNEY GENERAL OF JAMAICA

2 ^nd RESPONDENT

CRIMINAL LAW - Carnal knowledge

G. SMITH, J

1 The Claimants in this case are two broad based community associations representing the citizens of Portmore.

2 The Respondents are both representatives of the Government of Jamaica.

3 This action was brought as a result of an order - the Toll Roads (Designation of Highway 2000 Phase I) Order (the Order) made by the Minister of Transport and Works (the Minister) on March 12, 2002 and Gazetted on April 8, 2002 in accordance with the Powers given to him under the Toll Roads Act.

4 By that Order, the Minister designated that a toll road be built over the existing Portmore Causeway Bridge/Road. The Order stated: "Portmore Causeway/Dyke Road Upgrading (approximately 11.5 kilometres of 6 and 2 lane arterial roadway from 100 metres east and 100 metres north of Marcus Garvey Drive/Causeway Road intersection including upgrading and reconstruction of the intersection to the Dyke Road/Portmore Access Road interchange and including a new 6 lane crossing of Hunt's Bay and demolition of the existing bridge) and including a new 2 - lane road link through Portmore and along the existing Dyke Road" (hereafter referred to as Portmore Causeway Bridge/Road).

5 The alternative route to this toll road was designated to be the Mandela Highway - "along the Mandela Highway onto Dyke Road through Gregory Park and into Portmore and vice versa."

6 The residents of Portmore would be required to pay a toll to use the bridge when travelling to and from Kingston. However these residents believe that the current selected alternative route is long, circuitous and would cause delay, wear and tear and inflated petrol costs. In addition, certain classes of travellers would not be allowed on the new Portmore Causeway Bridge at all and would therefore have to utilize the alternative route.

7 Despite this Order being made in 2002, the Claimants maintain that they knew nothing of the Minister's intention to designate the Portmore Causeway Bridge a toll road and the fact that it would be demolished, until July 2004. Further they were unaware that the Minister had made the Order until March 11, 2005 when they took advice from Leading Counsel.

8 As a result they applied for the following orders on April 18, 2005:

• (a) an Order of Certiorari quashing the ultra vires designation of the Minister by way of the Toll Roads Act (Designation of Highway 2000 Phase 1) Order 2002 (the Order) so far as it speaks to the Portmore segment;

• (b) A Declaration that the designated alternative route (the Mandela Highway) is unlawful and not in conformity with Section 8(2) of the Toll Roads Act;

• (c) an Order of Prohibition of the making of a Tol order in relation to the Portmore segment of Highway 2000.

9 ISSUES:

• (1) Whether the Minister acted ultra vires in designating the alternative route as that via Mandela Highway under the Toll Roads Act specifically the Toll Roads (Designation of Highway 2000 Phase I) Order 2002;

• (2) Whether the Court should refuse to grant the Claimants the relief they seek by reason of their delay in instituting these proceedings.

10 THE LAW

Section 8(1) of The Toll Roads Act provides that:

"The Minister may, by order -

(a) Subject to subsection (2) designate any road as a toll road for the purposes of this Act;"

Subsection 8(2) provides that;

"No road shall be designated as a toll road under subsection (l)(a) unless in the area in which the toll road is to be established there is an alternative route accessible to the public by vehicular and other traffic."

11 Lord Gifford for the Claimants contends that subsection 8(2) of the Act is mandatory. He states that the Minister has a discretion as to what roads he chooses to designate as toll roads. However, his discretion is constrained by an absolute prohibition that whatever road he chooses there must be an alternative route and to this there is no discretion.

12 Mr. Hylton for the Respondents argued on the other hand that these sections mean that the Minister has a discretion as to which roads to designate as toll roads and which roads to designate as alternative routes and that the only statutory limitation is that the alternative route must comply with subsection (2).

13 The Court is of the view that section 8(1) of the Toll Roads Act gives the Minister a discretion as to which roads to designate as toll roads. This discretion is fettered by subsection (2), which imposes a mandatory obligation on the Minister to designate an alternative route to the designated toll road. This alternative route must be "in the area" of the toll road and must be accessible to other traffic.

14 One of the main issues to be determined in this case is whether the Mandela Highway satisfies the requirement of subsection (2) that the alternative route is "in the area" where the toll road is to be established and if it is accessible by vehicular or other traffic. The Claimants made no challenge to the accessibility of vehicular or other traffic to the Mandela Highway. The crucial questions therefore are - "What is the meaning that Parliament intended the words "in the area" to have?" and secondly, whether Mandela Highway falls within that interpretation.

15 Counsel for the Claimants submitted that the words are to be given their natural and ordinary meaning as was stated in the Sussex Peerage Case [1848–60] ALL E.R. Rep.55 where Tindal C.J. said at page 63:

"If the words of a statute are in themselves precise and unambiguous then no more can be necessary than to expound those words in their natural and ordinary sense."

Lord Gifford for the Claimants did not offer a natural and ordinary meaning of the words in the area for the Court's consideration. Instead a formulation of what the meaning should not be was proffered:

"in an area starting outside the area of the toll road but starting and ending at points adjacent to it".

The Courts attention was also drawn to:

(a) The Public Relations Officer of the Portmore...