Delta Petroleum (Caribbean) Limited’s attempts to have their case challenging the High Court ruling of Justice Vicki Ann Ellis brought up from September to July in the Court of Appeal were in futility as they were informed that their application for such a request could not be accommodated. Photo: Caribbean Jobs

Left: Commissioner of Customs, Wade Smith (centre) after exiting the High Court on October 2, 2012. Right: Regional General Manager of Delta Petroleum, Bevis Sylvester, speaking to his legal representative after exiting the Judge's Chamber. Delta Petroleum was represented by Terrance B. Neale of McW. Todman and Co. and the Commissioner of Customs by the Attorney General. Photo: VINO/File

Attorney at Law Terrence B. Neale of McW. Todman and Co. was afforded a hearing in the Court of Appeal yesterday July 11, 2013 and had appeared before Justice Louise Blenman, Justice Mario Michel and Justice Don Mitchell when he pleaded with the court to have the September 2013 appeal hearing brought forward. He was surprised when he was informed by Justice Blenman that the very day of his appearance, (July 11, 2013) were the final minutes of the setting of the Appeals Court.

The Court of Appeal had convened for a two-week special hearing of two cases, the last of which ended yesterday July 11, 2013 shortly after noon. Justice Blenman advised Mr Neale that their hands were tied as there was no time left to even consider the application.

Neale told the court he had received information that the special sitting would have extended beyond yesterday. However, he admitted that his source of such information was not official.

Justice Blenman took the opportunity yesterday to advise Mr Neale and Crown Counsel Kadia Edwards-Alister, who appeared on behalf of Her Majesty’s Customs, on another matter that the two sides needed to address prior to the commencement of the hearing in September.

Delta Petroleum (Caribbean) had filed an appeal in the Commercial Court following its loss to the Commissioner of Customs in the High Court on February 14, 2013. Delta had claimed that the learned Madame Justice Vicki Ann Ellis erred in law in delivering her decision.

Following Justice Vicki Ann Ellis’ decision, Delta Petroleum (Caribbean) had made clear its intention to file an appeal as they had cited a number of factors where Justice Ellis had allegedly erred in her judgment.

The company had issued a release which highlighted their concerns and grounds for appeal. The release alleged that Justice Ellis erred in law in that she allegedly failed to take into consideration the fact that the basis of the fuel seizure by HM Customs was the failure of Delta Petroleum to comply with certain directions previously issued by the Commissioner of Customs and not a failure to pay customs duties on dutiable fuel, thus making the seizure unlawful.

It was noted in the release that Delta Petroleum attempted to contact the senior officer of the Customs Department responsible for overseeing the discharge of the fuel by telephone on at least three occasions (both before and during the discharge process) but was unsuccessful in doing so. The release had claimed that this evidence was unchallenged in the Court proceedings.

Delta Petroleum sought to make it abundantly clear that there was never an issue of the company engaging in any illegal activity or attempting to evade the payment of Customs duties on imported fuel since the fuel in question was designated for the BVI Electricity Corporation (BVIEC) and was in fact always duty free.

It was felt that the only issue in the matter related to the failure of Delta Petroleum to comply with certain directions previously issued by the Commissioner of Customs and whether such failure or non-compliance permitted the Commissioner of Customs to seize the fuel.