The Tribune

By NEIL HARTNELL

Tribune Business Editor

THE Road Traffic Department "acted illegally" in refusing to inspect and register a Grand Bahama Port Authority (GBPA) licencee's 'taxi cab' on the grounds that it had not obtained a government license, the Supreme Court once again upholding the Hawksbill Creek Agreement against arbitrary executive actions.

Justice Estelle Gray-Evans, in her May 11, 2012, ruling in favour of G. B. Janiki Investments and its president, James Kemp, also found that 'taxi cabs' as a business fell under the Hawksbill Creek Agreement clause that permitted companies involved in "trucking or transporting passengers" to be licensed by the GBPA.

She found that businesses such as G. B. Janiki Investments did not need to obtain a government licence to conduct 'taxi cab' business in Freeport, defeating the argument by the Attorney General's Office that "trucking or transporting passengers" applied solely to seaborne-related companies.

Recalling the dispute's origins, Justice Gray-Evans in her judgment noted how G. B. Janiki Investments obtained its GBPA license to conduct business as a taxi company on December 1, 2005. The company also applied for, and was granted, a Customs bond and open warehouse status in April 2006.

G. B. Janiki Investments then imported several bonded vehicles for use in the 'taxi cab' business, but problems arose when the company attempted to have one inspected and licensed by Road Traffic in May 2006.

Despite having all its particulars in order, the Road Traffic inspector was alleged to have refused to inspect G. B. Janiki Investments' vehicle. The Road Traffic controller then informed the company and Mr Kemp that the vehicle could not be registered or licensed because he did not have a government-issued taxi cab license; there was no government letter authorising the issuance of taxi cab plates; and there was a moratorium on issuing new plates.

G. B. Janiki Investments and its attorneys subsequently issued Judicial Review proceedings in a bid to quash Road Traffic's decision, and sought a verdict that it was "ultra vires" or illegal. The company also wanted an Order requiring Road Traffic to register the vehicle and give it the necessary plates, arguing that the government 'moratorium' did not extend to Freeport and that no government license was necessary.

The Road Traffic Department, though, through the Attorney General's Office, argued that G. B. Janiki Investments was obliged under the Road Traffic Act to obtain a government license, and that any moratorium "would affect the entire Bahamas, including the Port area".

Justice Gray-Evans noted that the two sides differed on where G. B. Janiki Investments' 'taxi cab' business fell under the Hawksbill Creek Agreement. The company argued that it came under a part requiring it to be licensed by the GBPA, whereas Road Traffic claimed it came under one requiring a government license.

Road Traffic, as a result, alleged that "trucking or transporting passengers" referred to moving persons via boats and vessels, not taxi cabs, especially as the word 'freight' appeared immediately afterwards.

"I suggested to counsel for [Road Traffic] during the course of her arguments that it seemed to me that the respondents were attempting to treat the 'Port area' in section 2(23)(a) as if it were simply a seaport and she agreed with me, although to her credit she admitted it was a novel idea," Justice Gray-Evans said.

"To my mind, if the parties to the Agreement wished to place that restrictive an interpretation on 'transporting passengers', they could easily have included the words 'to and from the Port area' rather than 'within the Port area'.

"It seems, then, that [G. B. Janiki Investments] is correct. The business of a taxi company, which is, in my opinion, the business of transporting passengers, falls within the list of businesses provided for in sub-clause 2(23)(a) and, therefore, the applicant, in my judgment, did not need a license from the Government to operate a business in the Port area."

While it was Road Traffic's role, and not the GBPA's, to inspect and licence vehicles, Justice Gray-Evans said there was nothing to suggest G. B. Janiki Investments' license/inspection application was not in order, or that the vehicle was not roadworthy. The only obstacles, she added, were the absence of a government license and the alleged moratorium.

Finding that even if there was a moratorium it would not have extended to the Port area, Justice Gray-Evans ruled: "In my judgment, the power under the Road Traffic Act to issue a taxi license had been removed from the Government to the Port Authority, so far as the license to operate a taxi business within the Port area is concerned.

"So, once the Port Authority exercised its prerogative power, assigned to it by the Government under the Agreement, and issued the license to the applicant, and the applicant had satisfied the Road Traffic authorities that it had complied with the requirements for having its vehicle registered, the Inspector was obliged to inspect, and the Controller was obliged to register, the applicant's vehicle and issue a license plate thereunder."

Their failure to do so, Justice Gray-Evans found, meant Road Traffic "acted illegally, procedurally improperly and ultra vires, particularly as the applicant was seeking to have its vehicle registered with a 'bonded' license plate that would restrict its movement to the Port area".

As a result, she granted the relief sought by G. B. Janiki Investments.