Re Buxo

JurisdictionGrenada
JudgeSt. Paul, J.
Judgment Date23 September 1992
Neutral CitationGD 1992 HC 8
Docket NumberNo. 515 of 1991
CourtHigh Court (Grenada)
Date23 September 1992

High Court

St. Paul, J.

No. 515 of 1991

Re: Buxo
Appearances:

Mr. E. A. Heyliger, Q.C., with Mr. J. Bristol for the applicant

Miss V. Hylton, Q.C., D.P.P for the respondent

Administrative Law - Natural Justice — Applicant charged with unlawful assault with a deadly weapon — Certificate to keep firearm and ammunition revoked — Section 36 (1) (a) of Firearms Act 1968 — Discretion in Commissioner of Police — Commissioner failed to (a) Act within the spirit of Section 36 (b) Follow the rules of natural justice — Applications granted.

St. Paul, J.
1

By his affidavit sworn on 7th November 1991 in support of his application filed on even date the applicant deposed as to the following facts:

1
    By letter dated 14th October, 1991 addressed to me and signed by the Commissioner of Police my firearm certificate to keep a Magnum Smith and Wesson revolver serial number 706693 with 16 rounds ammunition was revoked. 2. The Commissioner of Police as stated in the said letter purported to act under the authority of section 36(1)(a) of the Firearms Act No.42 of 1968 and the reason given for the revocation is that I was charged with the offense of assault with a deadly instrument. There is now produced and shown to me and exhibited hereto and marked with the letter “B1” a true copy of the said letter. 3. On 21st October 1991 my counsel wrote the Commissioner of Police indicating to him that the revocation is ultra vires the Firearms Act aforesaid. I am advised by counsel and verily believe that the Commissioner of Police has not replied to his said letter. There is now produced and shown to me and exhibited hereto and marked with the letter “B2” a true copy of the said letter. 4. My said counsel informed me and I verily believe that he spoke to the Commissioner of Police on the 6th November 1991 and requested the commissioner to return my firearm to me which the commissioner refused to do. My counsel also informs me and I verily believe that the commissioner told him that he never read my statement to the police in connection with the charge against me in which I made serious allegations against virtual complainant. 5. I am advised by counsel and verily believe that the Commissioner of Police in revoking my said certificate to keep a firearm acted ultra wires section 36(1)(1) of the Firearms Act 1968 and also contrary to natural justice in not giving me a hearing. 6. I respectfully submit to this Honourable Court that an order should be made prohibiting the said Nester Ogilvie, Commissioner of Police, from depriving me of my said certificate to hold the said firearm and also of my firearm which I delivered to the police in accordance with a letter from the Commissioner of Police dated 14th October 1991.”
2

The respondent in his affidavit of 19th November 1991 deposed follows:–

  • “1. Clarence Scoon of Gouyave in the parish of St. John within the State of Grenada complained to the police and made a statement on the 10th day of September 1991 alleging that on Saturday the 7th day of September 1991 Cecil Buxo assaulted him with a firearm over a period of several minutes.

  • 2. The allegations of Clarence Scoon were investigated by Sgt. 574 Ignatius Mason of the Royal Grenada Police Force.

  • 3. Upon the completion of the investigations it was agreed that the said Cecil Buxo should be charged for that he unlawfully assaulted Clarence Scoon with a deadly instrument, to wit, a gun and a Warrant of Arrest was sworn to by the Investigating Officer on the 10th day of October 1991.

  • 4. Having considered the allegations against Cecil Buxo, and having regard to the investigations carried out by Sgt. 574 Ignatius Mason, and having regard to the statements obtained from the said Cecil Buxo and his daughter Xia Buxo, I thereupon examined the provisions of the Firearms Act, Act No. 42 of 1968 and in particular section 36 thereof.

  • 5. Having considered the provisions of the Firearms Act, I exercised my discretion under section 36(1)(a) of the said Act to revoke the certificate of Cecil Buxo, that is to say his certificate to keep a. 41 Magnum Smith and Wesson Revolver Serial No. 706693 with 16 rounds of ammunition as I am satisfied having regard to the above investigations that he is unfit to be entrusted with such a firearm and ammunition.

  • 6. By letter of 14th October, 1991, I informed Cecil Buxo in writing of my decision which I exercised honestly believing the same to be right and proper and in the interest of public safety.”

3

The applicant now seeks the following relief:–

“The relief sought is an order of prohibition directed to Nester Ogilvie, Commissioner of Police from continuing to act in excess of jurisdiction and contrary to natural justice by revoking the certificate of Cecil Anthony Buxo to keep a Magnum Smith and Wesson revolver serial number 706693 with 16 rounds of ammunition.

The grounds upon which the relief is sought are that the said Nester Ogilvie, Commissioner of Police acted ultra vires section 36(1)(a) of the Fire Arms Act No. 42 of 1969 and also contrary to natural justice by not giving the said Cecil Anthony Buxo an opportunity to be heard.”

4

Leave was granted to the applicant to amend his statement to include the following relief:–

“An Order of Certiorari directed to Nester Ogilvie, Commissioner of Police quashing his order dated 14th October 1991, revoking the certificate of the applicant to keep a Magnum Smith and Wesson revolver serial number 706693 with 16 rounds of ammunition.”

5

The respondent is alleged to have purported to exercise his power under S36(1)(a) of the Firearms Act (Act No. 42 of 1968) hereinafter called “the Act”).

6

S36(1)(a) of the Act provides as follows:–

“Subject to section 37, the appropriate authority may revoke any licence, certificate or permit if:–

  • (a) He is satisfied that the holder thereof is of intemperate habits or of unsound mind, or is otherwise unfit to be entrusted with such a firearm or ammunition as may be mentioned in the licence, certificate or permit;”

7

It was urged on behalf of the applicant that the respondent acted arbitrarily and capriciously. The respondent never exercised his own discretion, he acted after he was briefed by his subordinates. He acted ultra vires when he withdrew the applicant's licence. He had a duty to act in good faith, something he failed to do. Moreover, he acted contrary to the rules of natural justice since the applicant was not given a hearing before his licence was withdrawn by the respondent. In support of his contentions counsel for the applicant cited the following authorities:–

  • (i) Atkins Court Forms Vol. 14 1972 Ed at page 14

  • (ii) Prof. Wade admin. law 3rd Ed. p 150

  • (iii) de Smith Judicial Review of Administrative Action

  • (iv) Federal Civil Service Commission v Loaye C.L.R 1990 p 443

  • (v) Rampargat Katwaroo v Randolph Burroughs, Commissioner of Police No. 1502/1980

  • (vi) The Firearms Act No. 42 of 1968

8

Counsel for the respondent urged that S36(1)(a)...

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