| |
JUDGMENT
[1] After the filing of the notice of appeal in this matter we were
concerned as to whether our jurisdiction had properly been invoked and the
appellant was indeed entitled to an appeal as of right pursuant to section
6(d) of the Caribbean Court of Justice Act as alleged by him. Accordingly,
we requested the parties to furnish us with written submissions addressing
this issue. We have examined these submissions and have concluded in all the
circumstances that the appellant has no such appeal as of right, that in any
event the appeal was wholly lacking in merit and that therefore it should be
struck out. These are our reasons for so concluding.
[2] Mr. Mohammed Yasseen joined the Guyana Police Force on 15th August, 1973
and rose to the rank of Station Sergeant. On the 28th March, 1990 he was
informed in writing by the Commissioner of Police that in the public
interest, in accordance with section 35(1) of the Police Act Chapter 16:01,
he was being discharged from the Force with effect from the following day.
He appealed his dismissal to the Police Service Commission but his appeal
was disallowed.
[3] It was never disputed that he was given no opportunity to be heard
either by the Commissioner before receiving his letter of termination or by
the Commission before his appeal was dismissed by that body. He instituted
proceedings in the High Court claiming damages for wrongful dismissal and a
declaration that his removal from the Force was unconstitutional and of no
effect.
[4] At the trial, an unsuccessful application was made to amend the
statement of claim to include a claim that Mr. Yasseen be paid compensation
and benefits appropriate to someone who had been compulsorily retired from
the Force. Roy J. found nonetheless that the failure on the part of the
Commissioner to observe the rules of natural justice rendered Mr. Yasseen's
dismissal from the Force wrongful. The judge thought it fit to award damages
for wrongful dismissal but stated that those damages should be moderated on
account of the admission by Mr. Yasseen that he had not, since his dismissal,
applied for any other job but had been content to assist his parents with
their rice cultivation on the Essequibo coast. In the result, the Judge
awarded 24 months salary for wrongful dismissal with interest thereon and
costs. No order was made for payment of pension.
[5] Mr. Yasseen appealed to the Court of Appeal. He was dissatisfied with
the refusal of the trial judge to allow the amendment that had been sought.
He contended that since his dismissal was not only wrongful, but null and
void, he was still in effect a member of the Force and as such entitled to
all his salary and allowances up to the age of retirement in addition to the
pension he would have received had he retired at that age. He complained
that the trial judge wrongly awarded compensation "on a principle of the law
of Tort (sic), to wit mitigation, which is not applicable to a deprivation
of a fundamental right".
[6] The Court of Appeal (Claudette Singh, Kissoon and Chang, J.J.A.) upheld
the judgment of the trial court and in particular, held that Roy J. was
right to have taken into account the failure of the appellant to mitigate
his loss. In the opinion of the Court of Appeal the statement of claim "could
not have transformed a private law action for unlawful dismissal to a
constitutional matter as what was alleged was not an infringement of any
fundamental right but a breach of natural justice". The court however found
that Mr. Yasseen was entitled to pension for the period of his 17 years of
service in the Force and so allowed the appeal to the extent of so ordering.
[7] The appellant then launched an appeal to this Court. His original notice
of appeal reflected that his appeal was brought as of right pursuant to
section 6(b) of the Caribbean Court of Justice Act, No 16 of 2004 but it was
later clarified that the appeal has actually been brought pursuant to
section 6(d) of the Act. The relevant section states:
(6) An appeal shall lie to the Court from decisions of the Court of Appeal
as of right –
(a) ...
(b) in proceedings for the dissolution or nullification of marriage
(c) …
(d) in any proceedings that are concerned with the exercise of the
jurisdiction conferred upon the High Court relating to redress for the
contravention of the provisions of the Constitution for the protection of
fundamental rights.
[8] The appellant in his amended notice of appeal listed four grounds of
appeal as follows:
(a) The refusal of the Court of Appeal and the High Court to amend the
Statement of Claim to facilitate the proper prayer for benefits is wrong in
law;
(b) The appellant having been removed from the Police Service in the public
interest is entitled to be paid his full benefits;
(c) The finding that there exists a relationship of master and servant
between the Commissioner of Police and the Appellant is wrong in law, and
(d) The learned judge did not state the principle on which he based his
award of damages.
[9] The essential question for decision at this stage is whether in all the
circumstances the appellant has an appeal as of right within the meaning of
section 6(d) of the Caribbean Court of Justice Act. It was to this issue
that we asked the parties to direct their written submissions.
[10] The submissions of counsel for the appellant were not very helpful.
They concentrated on establishing that there was no procedural bar to the
appellant advancing in these proceedings a claim to redress for the
infringement of a fundamental right. They did not address the issue whether
in the instant case, Mr. Yasseen was entitled to appeal as of right to this
Court.
[11] Counsel for the respondent in his submissions referred us to a number
of authorities, including Khemrajh Harrikissoon v Attorney General[FN1] and
Jaroo v Attorney General[FN2], to make the point that a mere reference to a
claim for constitutional relief or assertion of a fundamental right, does
not suffice to entitle a court to exercise its constitutional jurisdiction.
Counsel contended that the appellant had no appeal as of right and that,
assuming but not admitting that the appellant had a meritorious case, he
should have sought special leave to appeal to the Caribbean Court of Justice.
In any event, counsel submitted, special leave would have had to be refused
because the appellant did not have an arguable case.
----------------------------------------------------------------------------------------------------------------
[FN1] (1979) 31 W.I.R. 348
[FN2] (2002) 59 W.I.R. 519
----------------------------------------------------------------------------------------------------------------
[12] In examining the pleadings in this case, we must express our agreement
with the observations of Roy J. who noted that:
"... nowhere in the Indorsement of claim or Statement of Claim is there a
specific reference to any Article of the Constitution and in particular
Articles 142(1) and 153 alleging violation of any of the Plaintiff's
fundamental rights nor were there sufficient facts pleaded to ground a prima
facie breach of those guaranteed rights. The infringement of a legal right
is not necessarily that of a fundamental right."
[13] The fact is that the claim in this case was not presented as a breach
of a fundamental right. Nor can it be seriously suggested that the appellant
had a fundamental right to salary and pension as if he had continued in his
post until his attainment of the relevant retirement age. The basic
contention here was that his termination was wrongful because of the Police
Commissioner's disregard of the principles of natural justice. The right to
institute the action on that ground existed independently of the
Constitution and did not depend on, and was not concerned with, establishing
the contravention of any provision of the Constitution for the protection of
fundamental rights. The courts below proceeded on that footing.
[14] Even if the appellant were to allege - and we must not necessarily be
taken as supporting either of these propositions - that his right to be
heard constituted a fundamental right protected by the Constitution or that
his job was property the enjoyment of which was protected by the
Constitution, there is no principle of constitutional law which would have
required the Court, in assessing compensation due to him for breach of
either or both of those assumed rights, to treat his employment as
notionally continuing until his retirement age and to ignore his capacity to
take up alternative employment and earn an income from it. Put another way,
there is no basis in principle or in decided cases for treating the policy
which the courts have traditionally followed of not ordering specific
performance of contracts of service as inapplicable to a contract of service
which has been terminated in breach of a fundamental right protected by the
Constitution.
[15] In the circumstances there is nothing in this case that turns on it
being treated as a claim under any of the relevant constitutional provisions.
The claim of the appellant for 'full benefits' i.e. for salary to retirement
age and pension accordingly, would have no better chance of success if it
could be founded on breach of a fundamental right protected by the
Constitution. It follows that these proceedings cannot be said to be
concerned in any meaningful way with the exercise of the jurisdiction of the
High Court relating to redress for the contravention of the provisions of
the Constitution for the protection of fundamental rights and therefore, do
not fall within the ambit of section 6(d) of the Caribbean Court of Justice
Act.
[16] We also agree with counsel for the respondent that the appeal would
have been dismissed by us even if leave had properly been granted. Roy J.
awarded compensation equivalent to 24 months' salary for wrongful dismissal
and this was affirmed by the Court of Appeal which increased Mr. Yasseen's
compensatory package by awarding him a pension based on his 17 years service
in the Force. In the absence of any technical rule requiring the Court to
regard the employment of the appellant as being in existence until he
attained the retirement age, there is no possible basis on which we could
have treated the compensation he has actually been awarded as unfair or
inadequate. This appeal must therefore be struck out.
[17] The striking out of the appeal is the result of the determination of a
preliminary issue raised by the Court of its own motion, and not as a result
of an application made by the respondent. In fact, we have before us nothing
to suggest that the respondent opposed the grant of leave to appeal. In the
circumstances, we make no order as to costs. |
|
