Water Street vendors to go
Council's granting of licence was illegal
- Chief Justice Bernard
By Samantha Alleyne
May 1, 2001
The Water Street vendors yesterday lost their ongoing court battle with the Mayor and City Council when Chief Justice Desiree Bernard dismissed their appeal and ruled that they remove from the street in one month's time.
In her eight-page judgement, Justice Bernard gave the applicants one month to comply with the City Government By-laws of the Municipal and District Councils Act, Chap. 28:01, by-law 10 paragraph (1) which states that: "No person shall leave, place, or store, or cause to be left, placed, or stored, any vehicle, cart, dray, barrel, box, dust-bin, tree trunk, branch, limb, or other thing upon any street, parapet, pavement, or foot-path, or in any other way encumber any street, parapet or pavement, with any vehicle, cart, dray, barrel, box, dust-bin or other thing."
The appeal was filed in the High Court by Grantley Lewis, Anne Payne, Gopaul Ramdass, Shayam Ramsingh, Samuel Mc Intyre and Sonia Mc Kenzie in their personal capacity and as representatives of 53 other vendors of Water Street. The respondent of the appeal was Town Clerk, Beulah Williams.
Before making her ruling, Justice Bernard said that the first and fundamental issue that should be determined was whether the appellants had a legal enforceable right, which they needed to protect by the granting of an injunction. Referring to the licence granted to the vendors by the council, which gave them the right to sell on Water Street between the hours of 7:00 am and 5:00 pm for which they paid $500 a week, the Chief Justice said that a mere licence did not create any estate or interest in the property to which it related, as it only made an act lawful which other would be unlawful, according to Halsbury's Laws of England, 4th Edition, page 16, paragraph 9.
The next question that needed to be determined, the judge said, was whether the council had the legal authority to grant licence to the vendors to vend their goods on the pavement.
The judge made reference to the City By-law 10 paragraphs (1) and (2) which state that it was an offence to encumber any street, parapet or pavement with anything, and such encumbrance could be removed by the City Engineers' Department at the person's expense.
Justice Bernard questioned whether the respondent could grant the appellants licence to commit acts which were in clear contravention of the said by-laws or whether she or the council could make lawful, an act which was statutorily unlawful.
"The answer is so manifestly negative that it need not be mentioned. It is obvious that the respondent cannot grant a license permitting the appellants to commit an act which is unlawful under the very by-laws which were enacted under the Municipal and District Council Act (supra) from which the respondent and the city council derive their authority," the judge said.
She noted that the council knowingly aided and abetted the commission of a breach of its own by-laws and received payment of $500 per week for such a breach. The judge said that it was beyond comprehension how a supposedly responsible body of persons, such as the City Council, consciously encouraged the violation of its own by-laws by permitting the appellants and others to encumber the pavements of the city. The judge said that the vendors acted, no doubt, on the false assumption that they were acquiring legal rights under the alleged licence, and in this regard were misled by the council. She said they assumed that they had a right to sell on the pavements having been permitted to do so, and having been encouraged to construct stalls according to specifications supplied by the council.
She said that the actions of the council in the matter were clearly in violation of its own by-laws, and therefore, null, void, and of no effect. "The licence is a nullity as the respondent had no authority to enter into it," the judge said. As such everything which flowed from that license was a nullity.
In a scathing statement the judge said, "The council's actions are reprehensible and it must bear full responsibility for the present situation in the Water Street area."
As a result, the judge ruled that there was no need to consider legal concepts pertaining to the grant of injunctions and principles such as balance of convenience since the whole foundation of the appellants' case was unlawful and could not be sustained.
"I cannot give the Nelson's eye to the illegality of the alleged licence by continuing to regard it as being the basis of the appellants' continued presence on the pavements of Water Street. One cannot seek enforcement of rights where are illegal; to do so will be perpetuation a wrong and condoning illegality," the judge concluded.
Dismissing the appeal, the judge gave the vendors one month to remove from the street, in the light of the fact that the situation was the fault of the City Council.
Yesterday's ruling brought an end to the ongoing battle between the vendors and the council. On October 20, 2000, Justice Bernard had ordered the vendors to remove their stalls after 6:00 pm. She had given them until last year December to comply with the order.
However, when the matter was called, attorney-at-law Nigel Hughes, representing the vendors, had presented arguments in support of a motion brought by one of them requesting that Chief Justice Bernard grant a 38-day respite from the order for them to find places to store their stalls. He had argued that it took some time before the vendors were allowed a meeting with the mayor and at that meeting they were told the council had nowhere for them to store their stalls.
He had said that his clients had no difficulty complying with the order, but had nowhere to store their collapsible stalls. He contended that some of the vendors had already built their collapsible stalls.
After hearing lengthy arguments, from Senior Counsel Keith Massiah, for the council, and Hughes, Justice Bernard decided that she would hear the appeal and dispose of the matter once and for all.