A legal battle between two water companies in Grenada and the state-controlled Spicemas Corporation has finally ended in court.
The Yolanda McQueen-led Mount Pure took legal action after it felt that it was being discriminated against by Spicemas in favour of Glenelg in the 2019 carnival season by barring its products from being sold at its events.
The court case came after a physical confrontation between McQueen and the then Chief Executive Officer of Spicemas Jacob in which she alleged that he slammed a door and damaged her hand.
In ruling on the matter, high court judge Raulston Glasgow said: “Mount Pure has been partially successful in their claim against Spicemas Corporation, and a declaration in this regard that in awarding the 2019 sponsorship contract to Glenelg, Spicemas acted unfairly and procedurally improperly is sufficient in the circumstances.
“I have not been able to find that Mount Pure has made out their claim that they suffered losses as a result of Spice Mas Corporation’s actions and as such no damages are awarded.
It is therefore ordered as follows:
(1) A declaration is granted that Spicemas Corporation’s decision to award Glenelg the sponsorship contract without having an established process for sponsorship was procedurally irregular and unfair;
(2) The remaining aspects of Mount Pure’s claims are dismissed;
3) Costs are awarded to Mount Pure in the sum of $3,500.00.
As a public service, THE NEW TODAY reproduces in full the Glasgow ruling on the matter:-
JUDGMENT
BACKGROUND
[1] GLASGOW, J.: Grenada hosts its carnival celebration coined ‘Spicemas’ on the second Monday and Tuesday of August annually. This claim is about the events that occurred during Spicemas carnival in 2019 between the entity responsible for Spicemas and a local water manufacturer concerning sponsorship for that year’s carnival event. The claimant, McQueen Enterprises Limited, trades locally as Mount Pure Water and supplies natural mineral water locally, regionally and internationally. The claimant will be referenced by its local moniker (Mount Pure). Spicemas Corporation is the statutory establishment responsible for the planning and execution of Spicemas pursuant to the Spicemas Corporation Act.
CHRONOLOGY OF EVENTS
[2] Mount Pure claims that it wished to participate in the 2019 carnival as an official sponsor of Spicemas carnival in that year. In this regard, Mount Pure expressed this interest to Spicemas Corporation in 2018. Mount Pure later became aggrieved with the way Spicemas Corporation awarded sponsorship in 2019, contending that Spicemas Corporation awarded a ‘sponsorship contract’ to their competitor, Glenelg, without following the process of tendering as outlined in the Public Procurement and Disposal of Property Act2. Further dissension ensued as Mount Pure also alleges that Spicemas Corporation unreasonably required that its carnival vendors only sell Glenelg’s products during the carnival celebration, due to the exclusive sponsorship contract awarded to Glenelg. These grievances caused Mount Pure to file an application on 17th July 2019 for leave to apply for judicial review of Spicemas Corporation’s actions.
[3] On 23rd July 2019, the application came before the court which then granted leave, finding that there was an arguable case that Spicemas Corporation had acted in breach of the Public Procurement and Disposal of Public Property Act. The judge on hearing the application also granted an interim injunction restraining Spicemas Corporation from prohibiting its vendors from selling Mount Pure products during Spicemas 2019, and an interim declaration that: “the decision of the Respondent (Spicemas Corporation) to contract with vendors prohibiting the sale of the Applicant’s (Mount Pure) products during the activities of Spicemas 2019 is unreasonable and in violation of the Public Procurement and Disposal of Public Property Act.”
[4] Mount Pure later filed its substantive claim for judicial review on 2nd August, 2019.
MOUNT PURE’S CLAIM
[5] After being granted leave as aforesaid, Mount Pure claimed 8 declarations concerning Spicemas Corporation’s actions of awarding Glenelg sponsorship, inserting contractual terms into vending contracts, and preventing vendors from selling Mount Pure’s water during carnival3. Mount Pure sought an order quashing Spicemas Corporation’s decision to award sponsorship to its competitor, Glenelg and an order restraining Spicemas Corporation from inserting terms into vending contracts. Mount Pure also sought damages for the loss ostensibly caused by Spicemas Corporation’s actions, interest and costs. Mount Pure filed affidavits in support of their claim from Mr. Kevin Peterkin, the sales and marketing manager of Mount Pure and Ms. Shirley Roland McQueen, the managing director and sole shareholder of McQueen Enterprises Limited.
Kevin Peterkin’s Evidence
[6] In his initial affidavit in support of a request for leave to apply for judicial review, Mr. Peterkin deposes that McQueen Enterprises is a forward-looking business aiming to establish a firm foothold for production of water in Grenada and the Caribbean by bringing Grenadian produced water to the world. As sales and marketing manager, Mr. Peterkin explains that his responsibilities include building and promoting the brand and establishing and managing relationships with customers. As part of its marketing strategy, he explains that in 2019, Mount Pure entered the Berkeley Springs International Water Competition, where 112 competitors from 54 countries participated.
[7] Mount Pure later obtained the bronze prize for best bottled water in the competition. Mr. Peterkin asserts that Mount Pure’s profile in Grenada grew tremendously thereafter. As part of Mount Pure’s marketing strategy locally, he indicates that Mount Pure was interested in participating in carnival, as it is the largest single festival in Grenada and a key plank of establishing Mount Pure’s presence as a major player in carnival. By email dated 25th September, 2018, Mr. Peterkin recalls that he contacted Spicemas Corporation through Ms. Keisha Lawrence, a member of Spicemas’ administrative staff, indicating Mount Pure’s desire to become a sponsor of Spicemas 2019. He recalls receiving a prompt response from Ms. Lawrence on even date, wherein she explained that information was not yet available and promising to get back to him.
[8] Mr. Peterkin claims that he remained in regular telephone contact with Spicemas Corporation, calling biweekly to find out when the process to obtain sponsorship contracts would open. He explains that in addition to sponsorship, Mount Pure also wished to set up booths during carnival events to sell its products on its workers account and its own. The plan, as articulated by Mr. Peterkin, was to give their workers products at special prices, so that they could make a profit for themselves. Mr. Peterkin further deposes that he contacted established vendors to encourage them to sell Mount Pure products at carnival, and overall, they were expecting to do good business, due to the high interest in their products. Mr. Peterkin deposes that in June 2019 he was informed by Spicemas Corporation that applications for contracts to vend products during Spicemas 2019 would commence on 9th July, 2019.
[9] On 9th July, 2019, Mr. Peterkin states that he went to Spicemas Corporation’s office to sign up to obtain booths to sell Mount Pure products for carnival on behalf of the company and in his own personal capacity. After writing out the applications, Mr. Peterkin states that Ms. Lawrence told him that Mount Pure’s application would not be considered because Glenelg was the official sponsor for water for carnival and only Glenelg’s water was to be sold at events under the control of Spicemas Corporation.
[10] Mr. Peterkin alleges that this information came as a complete surprise to him, given that he remained in contact with Spicemas Corporation since 2018 about Mount Pure’s interest in sponsorship of Spice Mas 2019. He claims that he was never informed of any process through which business entities could bid for sponsorship. Mr. Peterkin states that he was further taken aback when Ms. George, a Spicemas Corporation official, made an announcement to the over 100 vendors gathered at the Spicemas Corporation office, that persons receiving contracts were only to sell Glenelg water and they could not sell Mount Pure water. He observed that a notice to this effect was also posted on Spicemas Corporation’s compound.
[11] Mr. Peterkin recalls that his personal application for a booth was accepted, but that he was made to sign an undertaking that he would not distribute Mount Pure products. Mr. Peterkin alleges that Mount Pure had invested in excess of $250,000.00 to purchase new equipment for production, expansion of Mount Pure’s storage capacity and the hiring of additional staff for carnival. He also alleges that Mount Pure entered into contracts to employ dozens of distributors of their water at carnival, but those contracts would be cancelled if they were not allowed to sell their products.
[12] Due to the losses that Mount Pure could have incurred, Mr. Peterkin explains that Mount Pure retained its present counsel to write to Spicemas Corporation, seeking to have the decision to blacklist Mount Pure’s products immediately rescinded. His counsel received an email acknowledgement with a promised response, but none was forthcoming. Mr. Peterkin states that Spicemas Corporation’s actions as a public body unfairly undermined Mount Pure’s business strategy and sent a negative message to the market about the Mount Pure brand. He further states that Spicemas Corporation’s actions caused serious and irreparable damage to Mount Pure’s competitive position in the market.
[13] Mr. Peterkin also filed a supplemental affidavit dated 2nd August 2019 in support of Mount Pure’s claim. In this affidavit, he deposes that on the eve of the grant of the interim injunction, Spicemas Corporation issued a public announcement on radio and television indicating that the process to obtain licences for vending during the carnival period was closed. Mr. Peterkin claims that the statement also gave the impression that everything included in contracts which vendors had signed with Spicemas Corporation remained. In the days following, he recalls that Mount Pure contacted their distributors to inform them of the court’s order – that vendors were free to sell Mount Pure products at Spicemas Corporation activities.
[14] Mr. Peterkin claims that their distributors responded by saying that they heard and read Spicemas Corporation’s announcement that the Glenelg contract was valid and that they could sell Glenelg’s products at Spicemas Corporation’s events. Mr. Peterkin indicates that he made written representations to the CEO of Spicemas Corporation, Mr. Kelvin Jacobs for reconsideration of Mount Pure’s application to operate a booth for carnival, but Spice mas Corporation’s staff refused to accept it. Upon receiving information that the letter was not accepted, Mr. Peterkin deposes that he sent an email to the CEO, and the CEO responded that he was aware of the attempt to deliver the letter, but that he had instructed his staff that the process for issuing licences had been closed. Mr. Peterkin and Mount Pure asks the court to draw the inference at trial that the statement issued by Spicemas Corporation and the decision to refuse to reconsider Mount Pure’s application were deliberate attempts to circumvent the interim injunction and declaration granted by the court.
Shirley Rolanda McQueen’s Evidence
[15] Ms. McQueen simply deposes in support of the claim that Mr. Peterkin applied to Spicemas Corporation for a licence to carry on business in his own personal capacity, and the bar operated by Mr. Peterkin was for his own benefit. She concludes that McQueen Enterprise Limited did not obtain even a penny in benefit from his operation of the bar.
SPICEMAS CORPORATION’S RESPONSE
[16] Spice Mas Corporation filed affidavits in response to Mount Pure’s claim, from their Chief Executive Officer (CEO) Mr. Kelvin Jacobs, their sponsorship liaison Ms. Akeira Patterson, and their office manager Ms. Keisha Lawrence.
Kelvin Jacobs’ Evidence
[17] Mr. Jacobs deposes that Spicemas Corporation is a statutory body established by the Spicemas Corporation Act (the Act), and part of its duties under the Act include securing sponsorship and management of vending for carnival activities, including entering into contracts on terms and conditions at such fees as the Board may determine. He claims that Spicemas Corporation’s receptionist Ms. Julian George usually answers their telephone. Ms. George advised him that Mr. Peterkin had called on 2 occasions and that he did not remain in regular telephone contact as he alleges. Mr. Jacobs indicates that Spicemas Corporation does not have a sponsorship application process, and that vendors are granted a Spicemas Corporation pass to vend along the carnival route in a booth. Although these vendors are not to sell products that compete with Spicemas Corporation’s official sponsors, Mr. Jacobs indicates that this does not exclude the sale of these products in established businesses that are situated along the route.
[18] Mr. Jacob denies that a notice was placed on Spicemas Corporation’s compound about Mount Pure and avers that a list of all official sponsors was placed both outside and inside the building. He further indicates that Mount Pure was neither singled out by name in the announcement nor did the notice state that vendors selling water products during carnival were only to sell Glenelg products. Mr. Jacobs avers that their official sponsorship list is standard, as it allows their vendors to know the official sponsors and be able to approach those sponsors to purchase goods at reduced prices. Mr. Jacobs also claims that there were other notices posted on the building about how to apply for a liquor license, the process for vending (period and times), and the collection of score sheets for artists to assist and aid in the ease of the process by providing as much information as possible.
[19] Mr. Jacobs explains that the clause was placed in Mr. Peterkin’s vending contract because he had informed Ms. Lawrence that he intended to sell Mount Pure water by taking out their label and selling his water. As a result, he informed Ms. Lawrence that they should have Mr. Peterkin expressly sign that he would not sell Mount Pure water. Mr. Jacobs avers that if Mount Pure could incur the losses as alleged, the onus was on them to follow up with Spicemas Corporation about the sponsorship process. He asserts that Spicemas Corporation never attempted to blacklist Mount Pure’s products, as they could be sold outside of the carnival route by vendors or at established business places along the carnival route.
[20] Mr. Jacobs confirms that a reply was sent by email to Mr. Peterkin on 14th July, 2019, but avers that it recited that they were investigating the complaints made, and explains that the letter from Mount Pure’s lawyer was passed to the Government’s legal advisors for reply. Mr. Jacob concludes that Spicemas Corporation has never blacklisted or intended to unfairly undermine Mount Pure’s products.
[21] In Mr. Jacob’s supplemental affidavit, he deposes that Mount Pure’s recitation of the judge’s order was not what was actually ordered. He avers that after the order was made, they did not prohibit any Spicemas vendors from selling Mount Pure’s products during Spicemas, as the period for applying and granting of licenses to vendors at Spicemas ended on 12th July, 2019. Mr. Jacobs explains that Spicemas Corporation had notified the public about the 12th July, 2019 deadline for applications through various media programs, events and interviews with news outlets and by affixing notices on the door of its offices.
[22] Mr. Jacobs further avers that the proper interpretation of the court’s order was that Spicemas Corporation was unable to contract further with its vendors to prohibit them from selling Mount Pure’s products during carnival, but the order did not grant Mount Pure permission to have its products sold at carnival. He states that Spicemas Corporation issued the statement to educate and inform the public about the court’s ruling, as Mount Pure held a press conference directly after the court order which was confusing. He went to state that vendors contacted Spicemas Corporation for information about what occurred in court, and their rights and responsibilities resulting from the order. He also explains that Spicemas Corporation felt that it was their duty to advise the public of their understanding of the court’s ruling.
[23] Mr. Jacobs states that Mount Pure ought to have been aware that at the time of the letter, applications for vending licenses for carnival had passed, as Spicemas Corporation made this clear in its press release on 23rd July, 2019. He urges the court not to draw any inferences from Spicemas Corporation’s issued statement, as they owe a duty to the public to inform them of the court order and to ensure that its contracted vendors were aware of the effect of the order. This was especially in light of the fact that carnival was being held a few days after the court made its ruling.
[24] Mr. Jacobs avers that the Spicemas Corporation Act and its amendments by which Spicemas Corporation is governed allows them to secure financial and other sponsorship for carnival and Spice Mas 2019, and their powers under those Acts were adhered to in the instant case. Mr. Jacobs points out that during carnival on 12th and 13th August, 2019 Mount Pure, by way of its sales and marketing manager Mr. Peterkin, set up a booth along the carnival parade route and sold Mount Pure products, although Mount Pure had not obtained a vendor’s license to vend along the carnival route.
Akiera Patterson’s Evidence
[25] Ms. Patterson deposes that she is responsible for sourcing sponsorship for Spicemas Corporation, formulating sponsorship proposals and ensuring that Spicemas Corporation’s sponsorship requirements are met. She also formalises agreements between corporate sponsors, both new and existing. To obtain sponsors, Ms. Patterson indicates that she firstly conducts a situational analysis to ascertain the names of the existing sponsors. She explains that there was no outlined mode in the Act specifically speaking to the process by which sponsors should be engaged. Rather, it was within the power and duty of Spicemas Corporation to promote carnival independently or in conjunction with any other company or organisation concerned with the development and promotion of carnival.
[26] Ms. Patterson further deposes that she was appointed on 20th March, 2019 and was provided with a list of Spicemas Corporation’s sponsorship information for 2017 and 2018. This list referenced companies that had existing or continued partnerships with Spicemas Corporation. She further explains that Spicemas was due to launch on 27th April, 2019 but due to time constraints, a collective decision was made to engage with existing sponsors to find out which were most willing to renew their sponsorship.
[27] As Spicemas Corporation’s sponsorship duties are primarily to solicit funds or donations from companies for the staging of carnival, Ms. Patterson states her role to be that of seeking donations to assist with carnival. In exchange for these donations, she explicates that there are various forms of recognition extended by Spicemas Corporation to donors, primarily branding and brand presence. If companies do not have cash to donate, they donate services or products. If companies do not have cash to donate, they donate services or products. In furtherance of this, companies usually reach out to Spicemas Corporation to indicate their interest in sponsorship. A determination on sponsorship is then made by Spicemas Corporation based on the companies’ proposals, and how much they are willing to donate to the Spicemas product.
[28] Prior to being appointed, Ms. Patterson continues, the CEO informed her that the previous month, the brand manager at Glenelg had contacted him and was interested in continuing their support of Spicemas. She states that the CEO informed Glenelg that they could contact Ms. Patterson directly. On 23rd March, 2019, Ms. Patterson mentions that she was contacted by Glenelg’s brand manager, who requested a meeting to discuss continuing sponsorship of Spicemas for 2019, as Glenelg was the official water sponsor of Spicemas 2018.
[29] Ms. Patterson agreed to the meeting, which was set for the following Friday 29th March, 2019, and up to that time, she had not been approached by any other sponsor that produced water. At the meeting with Glenelg, she was shown Glenelg’s 2018 contract, and informed that they had been sponsors of Spicemas for the past 6 years because Glenelg felt that it was their corporate responsibility to give back to Spicemas. Ms. Patterson indicates that she asked the company to donate more to Spicemas, as the product had grown.
[30] Ms. Patterson deposes that Glenelg agreed and increased their donation to $12,000.00 along with 400 cases of water which could be used by Spicemas Corporation for refreshments. In exchange for this donation, Ms. Patterson recites that Glenelg was granted exclusivity for carnival events operated by Spicemas Corporation. In this regard, vendors were made aware that Glenelg was the official sponsor of water for carnival. Due to Glenelg’s willingness to sponsor Spicemas, and with no other proposal for water sponsorship made to Spicemas Corporation, Ms. Patterson discloses that Spicemas Corporation accepted Glenelg’s proposal in April, 2019.
[31] A cheque for the donation amount was presented to Spicemas Corporation at the Spicemas media launch on 2nd May, 2019. Ms. Patterson avers that the granting of exclusivity to Glenelg does not exclude Mount Pure from selling its products at established business along or outside of the carnival route. She further avers that Mount Pure never made a sponsorship proposal to Spicemas Corporation that could have been considered. Ms. Patterson states that Spicemas had 28 sponsors and the total sponsorship to Spicemas Corporation for Spicemas 2019 amounted to $884, 357. 50, excluding the contribution from the Government of Grenada.
Keisha Lawrence’s Evidence
[32] Ms. Lawrence acknowledges receiving Mr. Peterkin’s 2018 email, but indicates that Spicemas Corporation did not have a CEO at that time, and was wrapping up Spicemas 2018. When Spicemas Corporation started to consider sponsorship, Ms. Lawrence indicates that she spoke to Mr. Peterkin, and set up a meeting for 22nd February 2019 at 10 am. Mr. Peterkin was expected to attend that 22nd February 2019 meeting and converse with Mr. Jacobs, Spicemas Corporation’s CEO, about providing sponsorship. Ms Lawrence deposes that sponsorship is usually obtained by companies indicating their interest and making proposals to Spicemas Corporation. Mr. Peterkin agreed to attend the meeting.
[33] On 22nd February, 2019, when Mr. Peterkin did not show up to the meeting as agreed, Ms. Lawrence avers that she called him at 11 am and reminded him that he was supposed to attend Spicemas Corporation’s office for a sponsorship meeting with Mr. Jacobs. Ms. Lawrence claims that Mr. Peterkin informed her that he was presently in the Trade Centre and had forgotten about the meeting. Ms. Lawrence informed Mr. Jacobs of that conversation on even date, and she claims that Ms. George, Spice mas Corporation’s receptionist, informed her that Mr. Peterkin called and requested an appointment to see Mr. Jacobs the following day. She alleges that Ms. George told him that Mr. Jacobs was not available due to his schedule being fully booked, and that Mr. Peterkin responded okay. Ms. Lawrence further claims that Mr. Peterkin did not reschedule an appointment to conduct the sponsorship meeting.
[34] Ms. Lawrence next made contact with Mr. Peterkin when he attended Spicemas Corporation’s office in May 2019, and enquired about when vending applications were opening. Ms. Lawrence claims she informed him that applications for vending opened on 9th July, 2019. She was later informed by Ms. George that Mr. Peterkin called sometime thereafter to confirm that the date was still 9th July, 2019. Ms. Lawrence explains that there is no sponsorship application. Companies that are interested in making donations to Spicemas Corporation by becoming sponsors usually contact Spicemas Corporation and a meeting is held regarding sponsorship. On 4th May, 2019, carnival was launched. Ms. Lawrence recalls that Glenelg attended this launch.
[35] Prior to this, a media launch was held on 2nd May, 2019 where she recalls that Glenelg was named the official sponsor for water for Spicemas 2019. Up to this time, Ms. Lawrence recalls that Mount Pure had made no further contact with Spicemas Corporation or any of its officers with respect to the provision of sponsorship. Ms. Lawrence admits that Spicemas Corporation opened its offices at 9 am on 9th July, 2019 and that Mr. Peterkin made applications on behalf of Mount Pure and for himself personally to sell non – alcoholic beverages. She confirms that Mount Pure’s application was voided as Mr. Peterkin was informed that Glenelg was the official sponsor of water.
[36] Ms. Lawrence deposes that Mr. Peterkin told her that he intended to sell Mount Pure water at carnival, and that she informed him that Spicemas Corporation already had an official sponsor for water, which was Glenelg. She alleges that Mr. Peterkin said to her and the Administrative Assistant of Spicemas Corporation that he could just remove the label and sell the water. She asked Mr. Peterkin if he was joking and he said “if I take out the label they won’t know” and continued to insist that he wanted to sell Mount Pure water. Persons interested in obtaining vendor’s licences were lined up outside of Spicemas Corporation’s establishment. Ms. Lawrence states that Ms. George handed out the list of official vendors, and this list was also placed on the door amidst other notices, as well as outside the establishment. Throughout the day, Ms. Lawrence claims that she informed vendors of all the official sponsors of Spicemas 2019, as sponsors were offering specials on their products.
[37] Ms. Lawrence further states that when Mr. Peterkin attended their office sometime in May, 2019, it was solely to enquire about the opening of vending applications. She denies that she singled out Mount Pure, as the announcement of the names of all official sponsors was made throughout the day so that vendors knew the names of the sponsors and to ensure that vendors knew that Glenelg was the official sponsor for water. Ms. Lawrence observed that on that very day, Mr. Peterkin had been advertising Mount Pure water outside to the vendors. She indicates that Spicemas Corporation expressly requested that Mr. Peterkin sign an undertaking that he would not sell Mount Pure water, and when she asked him to sign this undertaking, he read it and signed it without objection.
[38] Ms. Lawrence denies that Mount Pure would have to cancel any contracts or that they were not allowed to sell their products. She avers that the vending licences granted by Spicemas Corporation relate to registered Spicemas Corporation vendors along the carnival route and nothing prohibits the sale of Mount Pure water at business establishments situated along the carnival route or those who are not registered Spicemas vendors. She further avers that any business establishment can sell Mount Pure’s water during the carnival period, as Spicemas Corporation does not host all events during the carnival period.
[39] Ms. Lawrence also denies that Spicemas Corporation blacklisted or intentionally unfairly undermined Mount Pure products. She explains that Spicemas Corporation had 28 sponsors who donated goods or money to Spicemas Corporation to ensure that Spicemas 2019 was successful.
[40] In respect of Mount Pure’s request for an injunction, Ms. Lawrence further explained that if an interim injunction was granted at the time, it would mean that Spicemas Corporation would have merely 19 days to seek to obtain further sponsorship in order to cover the loss likely to be incurred, may run the risk of sponsors pulling their sponsorship and open Spicemas Corporation to further litigious actions brought by other businesses. This would all affect the production of the Spicemas 2019 product and the public at large.
[41] Ms. Lawrence further explains that Spicemas Corporation would also be at risk of facing further action for breach of contract with Glenelg, who if the interim injunction was granted at the time, would have adverse financial implications despite not being a party to these proceedings. She suggests that Spicemas Corporation would have faced irreparable harm to its brand and its relationships with its then contracted sponsors and any businesses that may wish to partner with Spicemas Corporation in the future. Ms. Lawrence concluded by urging the court to consider the financial consequences for Spicemas Corporation and the hardship that would be faced by the wider public and the nation on a whole if an interim injunction was granted. It is of note that the court on hearing the application for interim injunction, did grant the same.
ISSUES FOR THE COURT’S DETERMINATION
[42] This matter came on for trial almost 5 years after filing on 29th February, 2024. Counsel for the parties had previously filed fulsome submissions on their respective positions for the court’s consideration. At the conclusion of the trial, counsel for the parties were asked to file precise written submissions on the issues raised at trial. In consideration of the submissions filed by counsel both prior to and after trial, and the evidence elicited, I found the following issues presented themselves for the court’s consideration:
1) Do the provisions of the Public Procurement and Disposal of Public Property Act apply to the awarding of sponsorships granted by Spicemas Corporation;
2) Whether Spicemas Corporation’s decision to award Glenelg sponsorship of carnival in 2019 was procedurally irregular, improper or unlawful;
3) Whether Spice Mas Corporation’s decision to prohibit its vendors from selling Mount Pure’s products at carnival events was irrational;
4) Whether Spicemas Corporation’s decision to insert provisions into its vending contracts amounted to unlawful restraint of trade or unlawful interference with Mount Pure’s business; and
5) Whether Mount Pure is entitled to the relief sought or any relief at all
Each of these issues will be analysed and discussed in turn.
LEGAL ANALYSIS AND DISCUSSION
Do the provisions of the Public Procurement and Disposal of Public Property Act apply to the awarding of sponsorships by Spicemas Corporation?
[43] Counsel for Mount Pure submits that both the Spicemas Corporation Act and the Public Procurement and Disposal of Public Property Act apply in this case because Spicemas Corporation was established by Parliament and is a public entity. Counsel also submits that the awarding of the sponsorship contract to Glenelg fell within the definition of ‘public procurement’ under the Public Procurement and Disposal of Public Property Act if a purposive interpretation and the ejusdem generis rule of construction is applied. As the sponsorship contract gave rights of advertisement and commercial exposure by Spicemas Corporation to Glenelg in exchange for Glenelg’s money, counsel submits that a procurement occurred, as Spicemas Corporation acquired an asset in the form of money. He also argues that this money fell within the definition of public funds under the Public Procurement and Disposal of Public Property Act.
[44] Counsel for Spicemas Corporation counters that the Public Procurement and Disposal of Public Property Act is inapplicable as Spicemas Corporation’s actions are not governed by the terms of that Act. While admitting that Spicemas Corporation falls within the definition of a public entity, counsel submits that Spicemas Corporation was not involved in public procurement or the use of public funds, which have specific meanings under the Public Procurement and Disposal of Public Property Act. Thus, only the Spicemas Corporation Acts apply, as counsel indicates that these Acts established the corporation to be the sole body responsible for carnival with the power of acquiring sponsorship therefore, which now forms the subject of this dispute.
[45] The answer to this issue is quite simple. When one reviews the Public Procurement and Disposal of Public Property Act and its amendments, it is manifestly clear that while Spicemas Corporation falls within the definition of a public entity, it was not involved in public procurement when it dealt with Glenelg’s sponsorship. Section 2 of the Public Procurement and Disposal of Public Property Act provides these definitions:
“procuring entity” means a public entity making a procurement to which this Act applies;
“public entity” means …any body, board or corporation or authority or trust or autonomous body (by whatever name called) established or constituted under an Act of Parliament;
“public funds” has the meaning assigned to it in the Public Finance Management Act and also includes monetary resources appropriated to procuring entities through the budgetary process, as well as extra budgetary funds, including aid grants and credits, put at the disposal of procuring entities and funds that are –
(a) Received or receivable by the Government, a statutory body, an executive agency or a state controlled enterprise;
(b) Raised by an instrument from which it can be reasonably inferred that the Government accepts ultimate liability in the case of default;
(c) Spent or committed for future expenditure by the Government, a statutory body or a Government controlled enterprise;
(d) Distributed by the Government, a statutory body or a Government controlled enterprise to a person; or
(e) Raised by a private body in accordance with a statutory instrument for a public purpose.
“procurement” means the acquisition by purchase, rental, lease, hire purchase, license, tenancy, franchise, or by any other contractual means of any type of works, assets, services, consultancy services or goods including livestock or any combination thereof by a procuring entity commencing with the identification of the need for the works, assets, services, consultancy services or goods and ending with the performances of the related contracts and the term “procure” or “procured” shall be construed accordingly;
“public procurement” means procurement involving the use of public funds.
[46] I find that Mount Pure’s argument stretches the Public Procurement and Disposal of Public Property Act beyond its legislative intent and meaning. Drawing from the locus classicus of Sussex Peerage Case5, Acts of Parliament should be construed according to the intent of Parliament which passed the Act and if the words of the statute are themselves precise and unambiguous, then no more can be necessary than to interpret those words in their natural and ordinary sense. If any doubt arises from the terms employed by the legislature, one can have, recourse inter alia to the preamble, which is a key to opening the minds of the makers of the Act, and the mischiefs which it intends to redress.
[47] The preamble of the Public Procurement and Disposal of Public Property Act recites that it is “an Act of Parliament to promote the public interest by prescribing the principles of good governance namely accountability, transparency, integrity and value for money in public procurement and to establish a framework of operational principles and procedures for efficient public procurement and for the disposal of public property by public entities and to provide for other related matters.” When one examines the meaning and tenor of the legislative provisions in the Public Procurement and Disposal of Public Property Act, it is clear that the Act was enacted to provide a framework for accountability in government spending, primarily for the acquisition of goods and services.
[48] Mount Pure’s interpretation of the Public Procurement and Disposal of Public Property Act posits a meaning clearly not signalled by Parliament on a plain and ordinary reading of the Act. If one follows what counsel is contending, it would mean that Spicemas Corporation would have to go through the arduous process of advertising that it required sponsorship for the carnival, request and accept bids and submit these bids to the Tenders Board for consideration.
[49] This interpretation overlooks one very crucial step – raising money and/or obtaining goods by way of sponsorship is not a request, acquisition or purchase of the goods or services themselves. Moreover, the raising or donation of funds, which is what Spicemas Corporation is empowered by law to do, has to be distinguished in this case from the use of public funds for public procurement of goods and services under the Public Procurement and Disposal of Public Property Act. It is the latter instance which the Public Procurement and Disposal of Public Property Act seeks to concern itself.
[50] That Act sets up a regime to ensure that principles of transparency, fair dealing and accountability play a central role in all cases where Governmental and parastatal entities use public funds for the acquisition of goods and services. The long and short of it is that there was no use of public funds by the Spicemas Corporation in the strict sense when they were exercising this statutory power to acquire sponsors for the carnival. One can properly say that they were actually raising funds. It is not to say that when Spicemas Corporation is engaged in raising funds by way of sponsorship, that it is not to be guided by principles of fairness, propriety and accountability. But these are matters that may be interrogated elsewhere in the law. There is no basis on which I can say that the Public Procurement and Disposal of Public Property Act applies in that regard.
TO BE CONTINUED