ACCRA Beach Hotel Ltd and Kenneth Charles v The Registrar of the Corporate Affairs and Intellectual Property Office

• Jurisdiction: Barbados
• Judge: Richards, J.
• Judgment Date: 01 June 2018
• Neutral Citation: BB 2018 HC 13
• Docket Number: CV No. 336 of 2017
• Court: High Court (Barbados)
• Date: 01 June 2018

High Court

Richards, J.

CV No. 336 of 2017

ACCRA Beach Hotel Ltd and Kenneth Charles

and

The Registrar of the Corporate Affairs and Intellectual Property Office

Appearances:

Mr. Khamaal A. Collymore, Attorney-at-Law of George Walton Payne & Co. for the Claimants.

Ms. Anika N. Jackson, Attorney-at-Law of the Attorney-General's Chambers for the Defendant.

Judicial review - Decision of defendant to request status of non-nationals as a precondition to the registration of a business name — Discretion provided under section 12 of the Registration of Business Names Act, CAP. 317 — Finding that there was a limitation of Registrar's discretion under section 12 to matters already provided for in section 5 of the Act.

INTRODUCTION

Richards, J.

1 The Claimants have brought judicial review proceedings challenging the legality of a decision made by the Defendant to impose a non-statutory precondition to the registration of a business name. The parties agreed that the Court may prepare and deliver this decision based on the pleadings and the written submissions.

BACKGROUND

2 The First Claimant is a company incorporated in Barbados, with its principal place of business at Rockley, Christ Church. The Second Claimant is an individual and a director of the First Claimant.

3 On 07 October 2016, counsel for the Claimants submitted an application to register “The Abidah by Accra” as a business name. Subsequently, counsel received an oral request for information additional to that submitted on the statutory form. This additional information was with respect to the immigration status of the Second Claimant.

4 By letter dated 17 October 2016, counsel for the Claimants advised the Defendant that the Registration of Business Names Act, Cap. 317 (“the Act”), did not require an applicant to provide information as to his status. Counsel contended that in making this request the Defendant exceeded her statutory powers.

5 The Deputy Registrar communicated with counsel by letter of 02 November 2016, stating:

“Please be advised that notwithstanding the representations made…this Office maintains the position taken by the Corporate Registry that the application received to register “The Abidah by Accra” under [the Act] does not in its present state satisfy the requirements for the issuance of a Certificate of Registration under Section 13 of the Act.

You are advised that based on the said Act and the Business Names Rules [“the Rules”] made thereunder together with longstanding departmental policy and practice regarding the processing of such applications, the applicant in proceeding with the application is required to address the following matters:

Item 6. Present Nationality

The applicant having indicated a nationality other than Barbadian is required to meet a status requirement to establish a link to this jurisdiction as evidenced by a work permit issued by our immigration officials

Item 8. Address of each Individual

The applicant is required to provide an address within Barbados”.

6 The Claimants submitted a revised application under cover of their counsel's letter of 16 November 2016. However, they resisted the request for the information sought under Items 6 and 8 of the Deputy Registrar's letter.

7 The Defendant responded to counsel by letter dated 09 December 2016. She explained the continued insistence for receipt of the requested information as follows:

“I have reviewed the correspondence on file inclusive of your response to our letter of November 2, 2016 regarding the requirement for evidence of the applicant's status and the provision of an address in Barbados as the Applicant has identified his present nationality as Trinidadian.

As you are aware, this Department is the competent Office which is responsible for all matters pertaining to Business Names and Companies within this jurisdiction, and as a Member State of CARICOM it is required, and has therefore established for several years now, administrative procedures which govern applications by CARICOM Nationals for the registration of Business Names within the CARICOM Single Market and Economy, pursuant to the Revised Treaty of Chaguaramus. These administrative procedures support the statutory requirements contained in our domestic legislation namely [the Act and the Rules], and as a member state of CARICOM, these administrative procedures have been ‘settled’ with the Prime Minister's Office which has responsibility for matters arising under the Single Market and Economy and the Immigration Department respectively.

In the present application for registration [the Second Claimant] has given his present nationality as Trinidadian and his address as…. Trinidad, West Indies. As a CARICOM National he is required to comply with the following where applicable:

• • If he has permanent resident or immigrant status he is required to produce a valid passport with the appropriate stamp or a letter/Certificate issued by the Chief Immigration Officer, showing evidence of his status in Barbados together with a recognized form of identification.

• • If he is registered as a CARICOM Skilled National, then he is required to submit a valid passport with the appropriate stamp.

• • In the event that his passport has not been endorsed it must be accompanied by a letter of approval from the Chief Immigration Officer verifying his status.

• • Where however he is a visitor to Barbados and has not been prohibited from employment, he is required to have a valid passport with permission to reside in Barbados for a minimum of six (6) months from the date of the application for registration of the Business Name.

As for the requirement of the Applicant to provide an address in Barbados you would no doubt agree that it makes good sense [for] the owner of a business who is not a national of Barbados and whose intention is to conduct business in this jurisdiction to have an address in Barbados”.

THE CLAIMANTS’ CASE

8 The Claimants were not persuaded to the Defendant's view. They filed a fixed date claim form, together with the affidavit of the Second Claimant, on 07 March 2017. The remedies sought are:

• 1. a declaration that the Defendant's request to know the status of the Second Claimant as a precondition to registering the business name is contrary to law and in excess of the jurisdiction conferred on the Defendant by the Act;

• 2, a declaration that the said request to know the status of the Second Claimant was unreasonable, irregular or an improper exercise of jurisdiction;

• 3. a declaration that the said request to know the status of the Second Claimant evinces the Defendant taking into account irrelevant considerations in determining whether to register the business name;

• 4. a declaration that the refusal to register the business name was an omission by the Defendant to perform her duty to register the business name in accordance with the Act;

• 5. an order of mandamus directing the Defendant to immediately register the business name in accordance with the Act;

• 6. damages;

• 7. interests;

• 8. costs; and

• 9. such further or other relief as the Court deems fit.

9 The grounds on which relief is sought are that the administrative action complained of:

• 1. was unauthorized by and contrary to the Act;

• 2. was in excess of the Defendant's jurisdiction;

• 3. was an unreasonable, irregular or improper exercise of discretion;

• 4. constituted the Defendant taking irrelevant considerations into account; and

• 5. is an omission by the Defendant to perform her duty to register the business name in accordance with the Act. The Defendant's Response

10 The Defendant filed her affidavit in response on 22 May 2017. In that affidavit the Defendant did not contest the factual background to the dispute between the parties (See para. 7 of affidavit). However, she denied that her refusal to register the business name was arbitrary and unlawful.

11 The Defendant deposed that:

• “8. …. The relevant legislative provisions for the processing of applications for the registration of business names are set out in the requisite laws of Barbados. However, as a Member State of [CARICOM, the Corporate Affairs and Intellectual property Office [“CAIPO”]] has adopted settled guidelines or best practices in relation to the processing of applications amongst Member States in pursuance of the Right of Establishment under the CARICOM Single Market and Economy (hereinafter referred to as “CSME”) and in accordance with the Revised Treaty of Chaguaramus (hereinafter referred to as the “RTC”).

• 9. …Barbados being a Member State of CARICOM, and CAIPO the competent authority in this jurisdiction for matters pertaining to the registration of business names and companies, has instituted administrative guidelines or best practices which govern the processing of applications for the registration of business names for CARICOM nationals. These guidelines or best practices were developed in consultation with the Immigration Department and address the circumstances which are generally applicable to CARICOM nationals. Applicants from CARICOM Member States are required to comply with these requirements which relate to immigration clearance and the documents for presentation at the Companies Registry. These requirements were drawn to the attention of the Claimants’ Attorneyat-Law by letter dated December 9, 2016….

• 10. …. CAIPO is the Barbados Government's principal office with statutory authority for the registration, general administration and regulation of business activities within this jurisdiction. Given the nature, conduct and scope of any business activities where an applicant is seeking to register a business and therefore in so doing carrying out business activities within this jurisdiction; the issue of the applicant's immigrant status must be satisfied in instances where the applicant is a non-national and is resident outside of this jurisdiction.

• 11...