Attorney-general of Antigua and Barbuda v James

JurisdictionAntigua and Barbuda
CourtHigh Court (Antigua)
JudgeBenjamin, J.
Judgment Date29 July 1997
Neutral CitationAG 1997 HC 33
Date29 July 1997
Docket NumberNo. 97 of 1996

High Court

Benjamin, J.

No. 97 of 1996

Attorney-general of Antigua and Barbuda
and
James
Appearances by:

M. Camacho for the plaintiff.

S. Christian, Q.C., Miss J. Walwyn with him for the defendant.

Injunction - Plaintiff sought a declaration that the defendant was not entitled to carry on her business on any part of the VC Bird International Airport without permit from the Superintendent of Aerodrome — Interlocutory application for an injunction also sought — Section 4(1)(b) of the Civil Aviation Act considered — Court found that pursuant to that section the Superintendent of Aerodromes was not authorised to request the granting of a permit for a vendor to ply his or her trade in the vehicle parking area — Court declined the grant of the injunction and dismissed action.

JUDGMENT OF THE COURT:
1

The defendant is a food and beverage vendor and in February, 1996, she plied her trade in the vehicle parking area of the V.C. Bird International Airport.

2

On 11th April, 1996, the plaintiff filed a Writ of Summons and in the Indorsement of Claim a declaration was sought to the effect that the defendant was not entitled to carry on her business on any part of the V. C. Bird International Airport without a permit from the Superintendent of Aerodromes. The plaintiff also claimed an injunction and damages.

3

Simultaneously, an interlocutory application was made for an injunction order in the following terms:–

“… that the defendant be restrained whether by herself or by her servants or agents or otherwise howsoever from remaining upon any part or portion of the V.C. Bird International Airport for the purpose of carrying on the business of a food and beverage vendor unless granted a permit to do so by the Superintendent of Aerodromes …”

4

The application was supported by an affidavit of even date sworn to by Mr. Errol George, the Superintendent of Aerodromes.

5

The defendant responded with an affidavit in opposition filed on 7th May, 1996 in which she challenged the power of Superintendent of Aerodromes under statutory regulations to prevent her from vending in the airport's vehicle parking area and hence disputed the plaintiff's entitlement to injunctive relief.

6

The court commenced hearing submissions in chambers upon the affidavits. In the course of arguments, it became apparent to the court, an observation in which both sides concurred, that given the agreed fact that the defendant was a vendor in the vehicle parking area of the V.C. Bird International Airport, the determination of the issue of trespass and, by extension, the plaintiff's entitlement to a permanent injunction hinged upon the lawfulness of the powers claimed by the Superintendent of Aerodromes. Such a determination, it was agreed, would effectively resolve the entire case.

7

It was, therefore, ordered, by consent, that the affidavits filed by the parties be treated as pleadings. The matter was adjourned into open court.

8

The affidavit filed on behalf of the plaintiff reflect that on 20th December, 1995, the Cabinet of Antigua and Barbuda decided, inter alia, that, save for the restaurant facilities at V.C. Bird International Airport:–

“There should be no other vendors of food and beverage neither fixed nor mobile be (?)permitted to operate within the perimeter of the Airport property.”

9

The Superintendent of Aerodromes attempted to enforce the directive by requesting by letter of 14th February, 1996 that the defendant discontinue selling at the airport as of 17th February, 1996. The defendant refused to comply with this request.

10

Mr. George, in his affidavit, made allegations as to the use of abusive language by the defendant, her alleged obstruction to vehicles and pedestrians using the parking area and the intervention of the police.

11

The defendant denied being abusive or in any way obstructive and went on to contend that criminal charges were laid against her but not pursued. This Court is not obliged to consider these matters as their input is not germane to the resolution of the issues before it. Indeed, the lawfulness of her use of the parking for vending purposes will dictate her liability to criminal prosecution arising therefrom.

12

Counsel for the plaintiff identified section 3(2)(v) of the Civil Aviation Act, Cap. 86 as conferring upon the Minister responsible for civil aviation the power to make regulations prohibiting, restricting or regulating the carrying on of business within any aerodrome which is under the control or in the occupation of the Ministry or any department.” He pointed out that the definition of the term ‘aerodrome’ under section 2 of the said Act speaks of “a defined area of land or water” but no boundaries were prescribed within the Act. The court was therefore urged to conclude that the definition encompassed a defined area in which business or trade could take place.

13

It was further submitted that the net effect of section 38 of the said Civil Aviation Act, Cap. 86 is that even though the Civil Aviation Act, 1982 (No. 16 of 1982) has been repealed, the V.C. Bird International Airport Regulations 1988 ( S.I. No. 24 of 1988) have been saved and remain of binding legal force.

14

Counsel for the plaintiff further submitted that by Regulation 3 of the said Regulations, the Superintendent of Aerodromes is charged with responsibility for the management and operation of all areas of the airport. Further, by Regulation 29(1), the Superintendent was authorised to issue permits for persons to carry on any trade or business at the airport.

15

On behalf of the defendant, learned Queen's Counsel traced the development of legislation relating to airports and aerodromes. The court was asked to find that the 1988 Regulations, which purported to govern the vehicle parking area, were ultra vires ab initio and were of no effect when the Civil Aviation Act,1991 was passed. It was argued that the various legislative instruments contained varied definitions of the terms “aerodrome” and “airport”. Further, the power of the Superintendent of Aerodromes to deal with matters pertaining to the vehicle parking area was disputed.

16

It was accordingly contended that there was no legal impediment to the defendant vending in the parking area and she did not require a permit from the Superintendent of Aerodromes. The plaintiff's entitlement to a declaration and a permanent injunction was disputed by the defendant.

17

On 17th June, 1952,...

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