Re. Lee

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judge: Glasgow, J.
• Judgment Date: 15 June 1976
• Neutral Citation: KN 1976 HC 3
• Docket Number: No. 6 of 1976
• Date: 15 June 1976

High Court

Glasgow, J.

No. 6 of 1976

Re. Lee

Appearances:

D. Byron for appellant

H. Browne and T. Seaton for comptroller of customs

Revenue law - Customs

Facts: Application for an order of mandamus requiring the Comptroller of Customs to grant clearance to ‘G’ as is required by section 11 of the Trade and Revenue Ordinance, cap. 258. The applicant was the master of the motor vessel ‘G’ registered in the U.S.A. Whether the vessel was validly detained.

Held: That the Comptroller of Customs is required to grant a clearance of the motor vessel in accordance with section 11 of the Act.

Glasgow, J.

1 Pursuant to leave granted him in that behalf the applicant Melvin Fitzhugh Lee has applied to the Court by originating motion for an order of mandamus directed to Sydney Williams, Comptroller of Customs, requiring him to grant such clearance to the Isabel A. Gamble as is required by the provisions of s. 11 of the Trade and Revenue Act, Cap. 258 of the Laws of the State of St. Christopher Nevis Anguilla (Revised Edition 1961).

2 The grounds upon which the said relief is sought are stated to be as follows: –

• 1. The said Melvin Fitzhugh Lee complied with the provisions of s. 11 of Cap. 258.

• 2. The said Sydney Williams is required by the said s. 11 of Cap. 258 to grant a clearance on compliance with its provisions by the Master of the vessel.

• 3. The said Sydney Williams failed to grant a clearance on the ground that he had received instructions not to issue such clearance through the Office of the Director of Public

3 Prosecutions.

4 4. Failure to grant the said clearance, in the premise infringes the legal right of the applicant.

5 The notice of motion, together with a copy of the statement in support of the application for leave under order 44, rule 1 of the Rules of the Supreme Court (Revision) 1970, was duly served on the Comptroller of Customs. No affidavit was filed on behalf of the Comptroller of Customs, but at the hearing of the application, the Comptroller of Customs gave evidence on oath.

6 The relevant facts, as I find them, are as follows: The applicant is and was at all material times the master of the motor vessel “Isabel A. Gamble” of United States of America registry. The applicant is also president of Gamble Shipping Ltd. whose place of business is situated at Central Street, Basseterre, St. Kitts. The applicant resides at Fortlands, Basseterre, St. Kitts. As far back as the 10 ^th May 1976 the Custom Department was prepared to charge the applicant in the matter of a false declaration allegedly made by him in relation to firearms found on board the Isabel A. Gamble. A charge was in fact brought — but not yet heard — against the applicant under s. 136 of the Trade and Revenue Ordinance (Cap. 258). That section provides that any person who in any matter relating to the customs or under the control and management of the Comptroller of Customs knowingly makes and subscribes or causes to be made and subscribed any false declaration, shall be liable on conviction to a penalty not exceeding four hundred and eighty dollars.

7 On the 15 ^th May 1970 the applicant, by letter of the same date, applied to the Comptroller of Customs for “formal clearance of the (said vessel to issue…for passage to Tortola, B.V.I.” The Comptroller of Customs, by letter dated 17 ^th May 1976, replied to the applicant in the following terms: –

“Dear Sir,

I have for reply yours dated May 15, concerning a request for clearance of the vessel MIV ‘Isabel Gamble’ to proceed to Tortola, B.V.I.

Earlier today my verbal discussion with you indicated that I had been awaiting advice from the Director of Public Prosecutions and would inform you of the Legal Departments decision in the matter. Since then I have been instructed that I should not, on any account, grant clearance as the vessel is required to remain within the jurisdiction of this State pending certain legal proceedings”.

8 Before applying for clearance the applicant had complied fully with the provisions of s. 11 of the Trade and Revenue Ordinance. The Comptroller of Customs nevertheless refused to grant clearance to the said vessel.

9 Counsel for the applicant urged the Court to grant the application. He stated that the facts before the Court both by affidavit and by oral testimony support the application. Counsel referred to the notes relating to Order 53 of the English Supreme Court Practice 1973 which indicate the circumstances in which mandamus could be granted. He said that there is a specific legal right and that mandamus is a convenient remedy. Counsel for the applicant referred to the relevant passages in DeSmith's Judicial Review of Administrative Action (3 ^rd Edition) and to section 11 of the Trade and Revenue Ordinance. He submitted that...