Stennett (Elma) v Attorney General

• Jurisdiction: Jamaica
• Judge: Beswick J.
• Judgment Date: 11 November 2005
• Judgment citation (vLex): [2005] 11 JJC 1101
• Court: Supreme Court (Jamaica)
• Date: 11 November 2005

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

BETWEEN

ELMA STENNETT

CLAIMANT

AND

THE ATTORNEY GENERAL

DEFENDANT

ADMINISTRATIVE LAW - Judicial review - Duty concession

JUDICIAL REVIEW - Duty concession

Beswick J

1 The Minister of Finance and Planning granted to Mrs. Elma Stennett, a duty concession which allowed her to pay 20% of the duty due on a motor vehicle which she had imported into the island. She was eligible for this concession as principal of a school.

2 Investigators of the Ministry kept Mrs. Stennett and the motor car under surveillance and eventually seized the car whilst it was in the possession of someone whom she describes as being her niece.

3 Some years later, a hearing was held at the Ministry where officials questioned Mrs. Stennett in the presence of her lawyer. The Minister did not attend but subsequently decided to revoke the concession because of what he regarded as the breach of its conditions.

4 Mrs. Stennett in these proceedings seeks to have a judicial review of the Minister's decision.

5 The Decision

6 In a letter dated February 18, 2003 to Mrs. Stennett's attorney-at-law, the Minister advised that:

"[A]fter review of the information relating to the use of the benefit of the 20% duty concession granted to Mrs. Stennett, it is fair to conclude that she had breached the conditions under which the facility was granted. On this basis the concession has been revoked and Mrs. Stennett will be required to pay outstanding duties/GCT of $1,200,000.00...."

7 There was no indication of what the condition was and how it was breached.

8 The reliefs she claims are:

• i. An order of Certiorari to quash the decision of the Minister of Finance contained in letter dated February 18, 2003 revoking the 20% concession rate of duty granted to the applicant in or about November 1998 for the importation of a 1999 BMW motor vehicle.

• ii A declaration that the Minister and or the officers of the Revenue Protection Department of the Ministry of Finance have no power under Section 32 of the Customs Act to forfeit the claimant's said motor vehicle.

• iii A declaration that the seizure of the claimant's motor vehicle is unlawful.

• iv Damages for unlawful detention of the claimant's motor vehicle.

• v Costs of this application to be borne by the defendants.

• vi Such further or other relief.

9 Mr. Foster, for the defendant, attacked the application on three grounds, the first two being procedural and the third being substantive. He submitted that the application should be dismissed because of the delay in bringing it and also because there were alternative methods of obtaining relief.

10 The seizure occurred on June 4, 2001. The Minister decided to revoke the concession on February 17, 2003. Mr. Foster argued that Mrs. Stennett was duty bound to challenge the decision promptly and in any event within three (3) months.

11 Indeed, he said, the application for leave had been made a day after the 3 month period had expired and reflected a pattern of delay exhibited by Mrs. Stennett, which pattern should now be taken into account.

12 He conceded that there had been no argument re delay at the application for leave to apply for judicial review, but argued that Rule 56.6 (5) Civil Procedure Rules 2002 shows that delay remains significant even though relief had already been granted. See Caswell v Dairy Produce Quota Tribunal [1990] 2 WLR 1320. According to Mr. Foster, Mrs. Stennett's delay has resulted in the Minister's decision being uncertain for four (4) years.

13 Leave had been granted to Mrs. Stennett in 2001 to proceed to judicial review for an Order of Prohibition to prevent a hearing into the matter at the Ministry of Finance but she did not pursue that application. Subsequently, there was a change of the Attorney-at-law representing her. The hearing was held and her new Counsel attended with her. Thereafter judicial review of the decision to revoke the concession was sought.

14 I agree that persons should not be kept in suspense about the legal validity of a public authority's decision for any longer period than is absolutely necessary. See O'Reilly v Mackman (1983) 2 All 237. However, this matter had a circuitous route before this application was made. Correspondence was being exchanged about the hearing, Court proceedings commenced to prevent it, then the change in representation and approach to the case. In those circumstances any delay that there may have been is not sufficient in my view to prevent Mrs. Stennett seeking redress now.

15 Mr. Foster's second procedural point concerned alternative redress. Rule 56.3(3) (d) of the Civil Procedure Rules 2002 provides that the claimant should utilize alternative means of redress before applying for judicial review. Mr. Foster submitted that here a claim for detinue and conversion would have been adequate to resolve all issues.

16 In addition, he argued, Section 215(1) of the Customs Act provides a remedy for the owner of items seized, to notify the Commissioner of Customs of the owner's claim to the goods.

17 Mr. Foster also referred to s.65 of the Judicature (Resident Magistrates) Act which provides for recovery of all penalties or forfeitures to the Crown.

18 It was his argument that this application should fail as other remedies were available and had not been used. See R v Epping and Harlow General Cmmrs. Ex. p. Goldstraw (1983) 3 All ER 257.

19 In R v Birmingham City Council ex.p. Ferrero Ltd (1993) 1 All ER 530, Taylor L J referred to the many decisions which affirmed that it is only exceptionally that judicial review should be granted where there is an alternative remedy and especially where Parliament provided a statutory appeal procedure. At page 537, the learned Lord Justice stated that "it is therefore necessary where the exception is involved, to look carefully at the suitability of the statutory appeal in the context of the particular case."

20 In my view the question to be answered is this. What are the real issues to be determined and is the statutory appeal procedure suitable to determine them?

21 The main issues are whether Mrs. Stennett is entitled to continue to enjoy the duty concession and whether she can recover her seized motorcar without additional payment. Inextricably intertwined with these are questions as to the limit to the power of the Minister to revoke the concession.

22 The Customs Act provides for redress for a seizure.

23 Section 215 (1) Customs Act provides:

"Whenever any seizure shall be made, unless in the possession of or in the presence of the offender .... or owner.... the seizing officer shall give notice in writing of such seizure and of the ground thereof to the....owner ...either by delivery of the same to him personally, or by letter addressed to him, and transmitted by post to, or delivered at his usual place of abode or business if known ....and all [such] seizure .... shall be deemed....to be condemned... unless the person from whom such seizure shall been made....or owner thereof....shall within one calendar month from the day of seizure give notice in writing to the Commissioner that he claims the same....whereupon proceedings shall be taken for the forfeiture....thereof..."

24 I reject the argument that Mrs. Stennett must be taken to have properly received notice of seizure of the vehicle by virtue of service of the notice on her niece. There is no evidence that her niece was her agent in general, and more importantly, no evidence of agency for service of documents.

25 Proper service would be necessary before any redress could be accessed under the Statute. Some of the alternative methods of redress suggested by Mr. Foster offer partial remedies for some of the reliefs sought but none offers total remedy for the reliefs sought.

26 I therefore regard these proceedings as being properly brought and I now consider the substantive issues.

27 Ms. J. Clarke. Counsel for Mrs. Stennett, relies on six (6) grounds for the reliefs sought.

28 Ground 1 for relief

29 The Minister in arriving at his decision has misinterpreted Section 32 Customs Act and has acted without foundation or in excess of his jurisdiction.

30 In a letter of September 4, 2004, Ms. Eureka Stewart, Attorney-at-Law for the Revenue Protection Department indicated that the special conditions governing the grant of the Concession to Ms. Stennett were those contained in:

• (a) Section 32 of the Customs Act,

• (b) the Ministry of Finance's Reference No. 565 /017 (1) stating

  "[W]hefe a duty concession has been granted, the vehicle cannot be sold or otherwise disposed of within a period of three (3) years of the grant of the Concession. If this is done full duties become payable immediately....", and

• (c) The Import Entry Form containing an endorsement declaring inter alia, that the goods mentioned in the licence "shall be used for my purposes only." Mrs. Stennett had been required to sign this Form.

31 Section 32 of the Customs Act provides a penalty where goods have been entered for special conditions and the conditions are not observed.

32 However, Mr. Foster, for the Attorney-General, expresses a different view as to the conditions applicable. He submits that s.32 Customs Act does not...