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[1] JUDGMENT
[1] The appellant was discharged from the Police Force by letter dated 30th
June, 1989, with immediate effect on the ground that his discharge was
desirable in the public interest. He filed suit the following month against
the Attorney General alleging that his removal from the Force was
unconstitutional null and void and claiming damages for loss of salary,
pension and gratuity. The appellant appeared to take the view that he was
entitled to the total compensatory package he would have earned had he
remained in the Force until he reached the age of retirement and that
further, the court should make no allowance for the possibility of his
mitigating his loss. After a trial the court held that the appellant had
been unlawfully dismissed. The appellant was awarded damages equivalent to
24 months' salary. The appellant appealed.
[2] The Court of Appeal (Claudette Singh, Kissoon and Chang, JJA) upheld the
judgment of the trial court but allowed the appeal to the extent of ordering
the State to pay the appellant the pension to which he was entitled based on
his 20 years service in the Force. The appellant was given leave to appeal
as of right to this Court.
[3] The facts of this case and the circumstances in which an appeal as of
right was filed resemble very closely those in the case of Mohamed Yasseen v.
The Attorney General [2008] CCJ 3 (AJ) in which this Court delivered a
written judgment on 26th March, 2008. Adopting the same course we followed
in Yasseen, we required counsel for the appellant to provide us with written
submissions on the issue whether the appellant was entitled to appeal as of
right. Those submissions were filed and having read them, we can see no
reason to alter the view we took in Yasseen namely, that there is no right
of appeal and that the appeal in any event lacks merit and should be
dismissed.
[4] In order to found a right of appeal, the appellant had to establish that
these proceedings were "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".
See: section 6(d) of the Caribbean Court of Justice Act, No 16 of 2004.
Counsel suggested that his client's claim to be entitled to salary, pension
and superannuation benefits was a claim premised on the breach of a
fundamental human right.
[5] This line of argument was given a fitting response in the court below by
Claudette Singh J.A. who rightly noted that:
"...the action is one for unlawful dismissal and is not one in which the
appellant was seeking constitutional redress for the infringement of a
fundamental right. The Commissioner in discharging the appellant without a
hearing has failed to observe the rules of natural justice in not affording
him a hearing. Failure to observe the rules of natural justice would not
amount to an infringement of a fundamental right".
[6] In Yasseen we noted at [13] and [14] in a passage which is equally
applicable to the instant case, that:
"(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."
[7] We consider that the identical reasoning applies to this case.
Accordingly we strike out this appeal and for the same reason we declined to
order costs in Yasseen, namely, that the respondent played no part in the
striking out of the appeal, we would make no order as to costs here.
[8] Before concluding this judgment we feel obliged to comment on the fact
that this case was originally filed in July, 1989. The High Court
proceedings were not concluded until November, 2004, more than fifteen years
after the case was filed. Undoubtedly there must have been reasons for this
but we can think of none that could justify a delay of that order. If such
delays are not eliminated, public confidence in the justice system in Guyana
will surely be eroded. |
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