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JUDGMENT
[1] On 7th May, 2007 after hearing arguments we refused an application by
Dwarka Nauth for special leave to appeal against a decision of the Court of
Appeal of Guyana. We promised to give the reasons for our refusal, and we
now do so.
HISTORY OF THE LITIGATION
[2] On 25th November, 1992 the applicant was appointed by the Regional
Executive Officer of Region 2, as a temporary Social Security Officer. This
is not a position in the permanent pensionable establishment of the Public
Service, and does not fall under the control of the Public Service
Commission.
[3] On 6th July, 1995 by Government Order No. 52/9/73 the applicant was
appointed by the Public Service Commission to act as Assistant Hospital
Administrator at the Suddie Hospital. This was a position in the permanent
pensionable establishment of the Public Service. The acting appointment was
terminated with effect from 1st January, 1996 due to the applicant's
interdiction from duty by his employer in his substantive post. He
thereafter ceased to be under the control of the Public Service Commission.
[4] By letter dated 31st August, 2000 the applicant's services with the
Regional Administration were terminated with effect from 1st September, 2000
as his position had been abolished. As a result of this he appealed to the
Public Service Appellate Tribunal (hereinafter referred to as "the Tribunal")
which is a statutory body established to hear appeals against decisions of
the Public Service Commission. The Tribunal after a hearing concluded on
21st March, 2003 that the applicant had been wrongfully removed from office,
and recommended that he be compensated.
[5] Consequent upon this decision the applicant filed proceedings in the
High Court claiming the sum of $5,096,353.00 being salary from 1st January,
1996. After hearing evidence the action was dismissed by Jainarayan Singh,
J., and an appeal was filed to the Court of Appeal which was also dismissed
on 13th July, 2005. On 25th August 2006 an application for leave to appeal
to this Court was made to the Court of Appeal which refused such leave on
22nd November, 2006. On 7th December, 2006 the present application for
special leave to appeal out of time was filed in this Court as well as an
application for leave to appeal as a poor person.
REASONS FOR APPLICATIONS
[6] The applicant asked that his failure to apply for special leave to
appeal within the prescribed time be excused on the ground that on 13th July,
2005 when the decision of the Court of Appeal was given, it was not known in
Guyana that the Caribbean Court of Justice was fully operational and ready
to accept appeals from the Guyana Court of Appeal. As a result he had
written the Court of Appeal requesting that it reconsider its decision in
exercise of residual powers granted to it by virtue of Article 123 of the
Constitution and Section 3 of the Court of Appeal Act, Cap. 3:01. No reply
was received to the first letter dated 22nd August, 2005, nor to a second
letter dated 24th October, 2005 written to the Hon. Chancellor (ag.). The
applicant alleged that the Court of Appeal was never reconvened to address
the issues raised in his letters, and that he was advised that while the
issue of jurisdiction was pending before the Court of Appeal he should not
move to the Caribbean Court of Justice as it might prejudice the
adjudication by the Court of Appeal.
[7] The reasons advanced in support of his application for leave to appeal
as a poor person were that he possessed no more than G$375,000.00 worth of
property, and after having been unemployed for a considerable period of time,
he was now employed as a school teacher earning G$48,000.00 per month, with
a wife and four minor children to maintain.
[8] At the hearing of the applications Counsel for the applicant informed
the Court that a written judgment was not available from the Court of Appeal
at the time when it gave its decision on 13th July, 2005, and only became
available later. He conceded that he was aware that under Rule 10.3(1) of
the Caribbean Court of Justice (Appellate Jurisdiction) Rules, 2005 (hereinafter
referred to as "the CCJ Rules") the time for seeking leave to appeal to this
Court from the court below was thirty (30) days from the date of judgment
and so the time for applying expired on 12th August, 2005. However, because
of the unavailability of the written judgment there was delay in applying.
SUBMISSIONS IN SUPPORT OF APPLICATION FOR SPECIAL LEAVE
[9] The applicant's reliance on Section 3 of the Court of Appeal Act, Cap.
3:01 was based on the fact that the Court of Appeal in the exercise of its
jurisdiction has all the powers and authorities vested in or exercised by
the Supreme Court of Judicature in England on 1st January, 1958, and the
Court of Appeal of England and Wales possessed a residual jurisdiction to
reopen an appeal which had already been determined. He further submitted
that in the instant case the applicant who was a member of the Public
Service was deprived of his office without compensation by a procedure which
was clearly unconstitutional, and there was no other convenient remedy; had
the Court of Appeal addressed his application to exercise its residual
jurisdiction the time for appealing to this Court would only have begun to
run from the date when the matter was determined.
[10] The applicant's application was opposed by the respondents who relied
on this Court's judgment in Brent Griffith v Guyana Revenue Authority[FN1]
and submitted that the special leave application was in fact an application
for an extension of time in relation to which the Court ought to take into
account the length of the delay, the reasons for the delay, and the strength
of the applicant's case; further the applicant had failed to establish any
grounds upon which this Court ought to exercise its discretion in granting
special leave.
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[FN1] [2006] CCJ 2 (AJ)
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[11] ISSUES FOR DETERMINATION
The issues to be determined by this Court are:
(1) has the applicant advanced satisfactory reasons for the delay in
applying for special leave to appeal, and
(2) does the intended appeal have sufficient merit to warrant an exercise of
the Court's discretion in favour of granting special leave?
[12] With regard to the first issue, the applicant claimed that a written
copy of the Court of Appeal's decision was not available when it was given
orally on 13th July, 2005. This Court held in Brent Griffith (supra) that it
is trite law that a judgment takes effect from the date upon which it is
pronounced. Hence 13th July, 2005 is therefore held to be the date when the
judgment in the instant case was delivered.
[13] The application for leave to appeal to this Court was made to the Court
of Appeal on 25th August, 2006, thirteen (13) months and twelve (12) days
after the date of the judgment on 13th July, 2005, well outside the
stipulated time of thirty (30) days from the date of judgment provided for
in Rule 10.3(1) of the CCJ Rules. Counsel's contention that on the date of
judgment the procedures for appealing to this Court were not generally known
among the legal fraternity in Guyana, strains one's credulity in light of
his admission that he knew of the enactment by Guyana of the Caribbean Court
of Justice Act in 2004, and also by July 2005 of the issue of the CCJ Rules.
It follows therefore that on the date of the judgment (13th July, 2005), he
knew that this Court was the final court of appeal for Guyana, and how to go
about launching an appeal to this Court. The CCJ Rules were made and issued
by the President of the Court on 17th June, 2005, and were available for
perusal shortly after this date.
[14] Even if we accept that in August 2005 the applicant was uncertain about
the procedure to gain access to this Court, certainly by January 2006
Counsel was familiar with the CCJ Rules when as Counsel for the applicant in
Brent Griffith (supra) he filed in this Court a similar application for
special leave to appeal. No application for leave to appeal was made to the
Court of Appeal in the instant matter until 25th August, 2006, and none to
this Court until 7th December, 2006.
[15] The applicant sought to explain the delay by stating that he was
awaiting a reply from the Court of Appeal to his request to reopen arguments
on the issue of the Court's jurisdiction to hear the appeal, and to have the
decision reviewed. Counsel conceded that he knew of no appeal where such a
request was ever granted by the Court of Appeal, and also admitted that the
Court of Appeal was being asked to change its mind about an issue on which
it had already ruled.
[16] Further evidence that Counsel knew of the existence of this Court can
be found in the letter dated 24th October, 2005 addressed to the Hon.
Chancellor (ag.) seeking his assistance in having the Court of Appeal
revisit the matter; in it he stated that "this decision has very serious
consequences in Public Law Litigation and may have to be ventilated in the
Caribbean Court of Justice".
[17] In spite of the fact that no action was taken in response to his two
letters of 22nd August, 2005 and 24th October, 2005 the applicant still
cherished the hope that the Court of Appeal would heed his request despite
the absence of new arguments or new facts. He continued to cherish that hope
one year from the first letter and ten months after the second, not to
mention over thirteen (13) months after the date of the decision.
[18] This Court in Brent Griffith (supra) laid down the parameters within
which it will exercise its discretion to grant special leave to appeal, and
emphasised that the grant of special leave is purely an act of grace or
discretion, and never a matter of right. The applicant's claim falters on
the ground that the delay was inordinately long and the excuse for it was
not acceptable. In the result we are not persuaded that there are sufficient
and adequate grounds for the exercise of the Court's discretion.
PROSPECT OF SUCCESS OF INTENDED APPEAL
[19] It is expected that an application for special leave will be supported
by reasonable and not frivolous grounds of appeal. As appears from Brent
Griffith (supra) if the intended appeal has no real prospect of success,
special leave will not be granted.
[20] No proposed grounds of appeal were filed by the applicant, but one can
safely assume that they would have been the same as those advanced as
grounds for the application for special leave.
[21] In substance these grounds seem to be based on the finality and
superiority of the Tribunal's decisions over those of the courts. However
the central question is whether the Tribunal had jurisdiction to entertain
an appeal from the applicant. Article 215A of the Constitution provides for
the establishment of the Tribunal for the hearing of appeals in respect of a
matter in which the Public Service Commission is empowered to make a
decision.
[22] The applicant was appointed a temporary social security officer by the
Regional Executive Officer in 1992 which by its definition was not a
position of permanence, and certainly not one of continuity as evidenced by
the fact that the position was abolished by the Regional Administration in
2000. One can conclude from all this that the applicant was not a public
officer and did not hold a public office. However, on 1st March 1994 he was
appointed by the Public Service Commission to act as Assistant Hospital
Administrator in the same Region thereby temporarily holding a public office,
but that acting appointment was terminated by the Commission with effect
from 1st January, 1996 when he was interdicted from duty having been charged
with an offence not related to his appointment. The acting appointment
having been terminated the applicant reverted to his former substantive
temporary position, and ceased to fall under the jurisdiction of the Public
Service Commission. He thereafter ceased to hold a public office. It follows
that there was no decision of the Public Service Commission which the
Tribunal had jurisdiction to hear and determine.
[23] According to the judgment at first instance the applicant admitted
while testifying that his appointment had nothing to do with the Public
Service Commission, and the action he brought had nothing to do with his
acting appointment, but only with emoluments which he felt were due to him
upon abolition of his position of temporary social security officer. In fact
his claim was for a specific sum being salary and increases payable in
respect of his post of social security officer (said to have been renamed "social
worker") from 1st January, 1996, the date of his interdiction. The basis of
his claim was in effect the failure to reinstate him in his substantive post
following his acquittal of the charges laid against him. That failure could
not be laid at the door of the Public Service Commission.
[24] The inevitable conclusion to be drawn from the foregoing analysis of
the applicant's claim and status is that the Tribunal had no jurisdiction to
make a finding that the applicant was wrongfully removed from his position
or to recommend that he be compensated since this was based on the erroneous
assumption that he continued to be a public officer falling under the
control of the Public Service Commission even after his acting appointment
as Assistant Hospital Administrator had been terminated.
[25] For all of the aforementioned reasons we find that the applicant has
failed to demonstrate that the intended appeal has any real prospect of
success so as to warrant an exercise of this Court's discretion to grant
special leave to appeal.
[26] As a consequence the application for special leave to appeal is refused
as well as the application for special leave to appeal as a poor person. We
made no order as to costs. |
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