Instead of allowing time for amendment of the claim of cane farmer Lucilo Teck against the Sugar Industry Control Board (SICB) to reflect a change in circumstances since permission was granted to file on January 23, on Monday Supreme Court Justice Shona Griffith decided to dismiss the claim, on the ground that it was not properly filed before the court under the Civil Procedure Rules.
The lynchpin of the original claim was a writ of mandamus ordering the Board to set a date for the commencement of the long-delayed 2014-2015 sugar cane crop season, which was subsequently done on January 26.
Lucilo Teck also asked for a series of other declarations which his attorneys, Audrey Matura-Shepherd and Anthony Sylvestre, fought to keep alive over the stern objections of Senior Counsels Rodwell Williams, Michael Young and Eamon Courtenay, representing respectively the Board, American Sugar Refining Inc./Belize Sugar Industries Limited (BSI), and the Belize Sugar Cane Farmers Association (BSCFA) as an interested party.
With the matter of the season opening settled, it was thought that the claim, which the senior attorneys had already argued was fatally flawed to begin with, might be dropped; but when it became clear that it was not, they asked the court to strike it out.
In the course of debating when and where to settle that issue, it became manifest that Audrey Matura-Shepherd and Anthony Sylvestre had missed a key component of filing the claim: a mandatory affidavit establishing the court’s jurisdiction under the CPR to hear the case. Somewhat generous with her understanding at the preliminary stage, Justice Griffith was not in a charitable mood on Monday, and ruled against Matura-Shepherd and Sylvestre.
Senior Counsel Williams outlined the turn of events in the courtroom.
“On the last occasion, leave was granted for the claimant Mr. Teck to file his fixed date claim form and he so did. And we made an application however, to dismiss/ strike out the case on various grounds, which included the view that it was now academic, but which also took the position that there were certain defects that goes to jurisdiction.
An additional defect was raised this morning, which has to do with the fact that the fixed date claim failed to be filed along with a mandatory affidavit setting out certain fundamental facts that goes to jurisdiction. And I believe at the end of the day, the judge was persuaded that she ought to strike the fixed date claim out, on the grounds that it failed to comply with the rules of court, which then impugn the jurisdiction and she did that. It is struck out and we are to do written submissions on the matter of cost in the next few days.”
The application to strike out the case would have presented other arguments concerning the flaws of the application, but it was not needed. For her part, Audrey Matura-Shepherd described the defeat as being over a finely technical point and opined that if given time they could have found a way around it.
“It was a very unusual technical point. At the end of the day, the judge said that she was minded not to take our position, which is to allow the application an adjournment date to argue the other technical points, and rule on that technical point, which is not what we expected.
My council here, who has assisted and has dealt with other matters, will tell you that that’s a very unusual technical point that we would deal with. We’ve done many applications, where our colleagues on the other side when we’re responding and we’ve dealt with other matters, where you don’t go and re-file the same application, because every time you file it costs, you pay. You charge your clients to pay. There’s a cost associated. So why would you replicate the same thing?
So we were a bit taken aback by the decision, but we respect the Court’s decision, as we usually do. However we also had the option to research further and decided we want to even appeal that decision. A lot of these things, sometime they come up for the first time, and for the jurisprudence and development of the law, you need to know where it goes.
It’s rather unfortunate when you have a very good substantive matter to bring before the Court, that the other parties can only get at you on technicalities, and they find every technicality, and the way the law is you just never know when there’s another technicality.”
Colleague Anthony Sylvestre said that while it is not likely they can bring back this particular case, related matters can and will be brought up by aggrieved cane farmers.
“There may be in the future, and certainly the aggrieved sugar cane farmers, who may very well feel as though the commencement date for the start of the sugar cane crop season may have adversely affected them, which we have to recall was the basis of Mr Lucilo Teck’s claim, that at the time matters were out of his control, and he as the cane farmer who certainly would have had an entire year of labor and work and revenue and income be dissipated, if there was no resolution the matter. That is why the claim was brought in the first instance.”
The court will hear the parties in writing on costs by March 13, with a decision due on March 23. But there was a parting shot from Michael Young, who said that the application may be in some part to blame for the extended delay to the crop season opening.
“Why have the Court, which has to deal with other cases, have its time taken up with this? So, in fact, all of us attorneys on our side were surprised. We heard nothing about the withdrawal of this case, which had become academic.
So they brought up if costs are awarded against Mr Teck, the Mr Teck is not a rich man. Well, they ought to have thought of that at the time. They’re the ones who should have thought that the season is starting, the cane is delivering, because of our application the farmers did not begin to deliver cane on the second of January. There was a three weeks delay. Why? Because of this case. So this case has cost everybody.
Now you have a situation where the case is academic, and there are objections that it was not started properly, and it has been thrown out.”
Michael Young insists that even if his opponents had gotten past the roadblock of the strike-out application, their case would not have stood up, as in his view the court could not force the SICB to act outside the law, which requires consultation with both parties.