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JUDGMENT OF THE RIGHT HONOURABLE MR JUSTICE
MICHAEL DE LA BASTIDE, PCCJ AND THE HONOURABLE JUSTICES NELSON JCCJ, WIT
JCCJ AND HAYTON, JCCJ:
INTRODUCTION
[1] This is an appeal from a judgment of the Court of Appeal of Guyana (C.
Singh, Kissoon and Chang JJ.A.) delivered orally on March 22, 2007. The
Court of Appeal dismissed that appeal and affirmed an order of Jainarayan
Singh J made on November 14, 2003 on the ground that constitutional
proceedings brought some twenty years after termination of the appellant's
employment constituted unreasonable delay and were an attempt to abuse the
process of the court. The Court of Appeal subsequently granted the appellant
leave to appeal to this Court without specifying any particular ground for
this. However, the Appellant's then counsel subsequently wrote to the
Caribbean Court of Justice advising that leave had been granted under
section 6(d) of the Caribbean Court of Justice Act, No. 16 of 2004. This
permits appeals as of right where the High Court has special jurisdiction
under Article 153 of the Constitution for the protection of fundamental
rights within Articles 138-151. After hearing full argument on this appeal
this Court agrees with the courts below that the appeal should be dismissed
for the reasons set out hereunder.
THE FACTS
[2] Stephen Edwards, the Appellant, held the position of Acting Deputy
Registrar-General of Births and Deaths in 1980. On March 28, 1980 he was
charged summarily with accepting $50.00 from a member of the public as a
reward for supplying two certified extracts from the Register of Births and
Deaths contrary to section 105(2)(a) of the Summary Jurisdiction (Offences)
Act, Cap 8:02. On January 20, 1981 a magistrate dismissed the charges
against the Appellant.
[3] By letter dated September 28, 1981 the Appellant was notified that he
had been dismissed from the Public Service with effect from September 19,
1981. The dismissal of the
Appellant took place without affording him a prior hearing. No reason for
the dismissal was given by the Public Service Commission.
[4] Some seven (7) years later the Appellant by writ of summons dated July
7, 1988, accompanied by a Statement of Claim, sued the Attorney-General and
the Public Service Commission in respect of his dismissal. We shall refer to
these proceedings as "the first action". Harper J. dismissed the first
action on the ground that it was statute-barred.
[5] In the first action the Appellant treated his employment as
automatically terminated by the dismissal letter of September 28, 1981 and
no longer subsisting. Indeed, the Appellant at paragraph 8 of the Statement
of Claim states:
"The Plaintiff no longer wish (sic) to be employed by Public Service
Commission".
[6] It is to be noted that by paragraph 7 of the Statement of Claim in the
first action the Appellant pleads but does not claim the loss of his
gratuity and pension rights. Having regard to his summary dismissal this
head of loss could only have referred to such superannuation benefits as had
accrued as at the date of his dismissal. In the first action the Appellant
claimed (1) a declaration that his dismissal was unconstitutional and (2)
damages for wrongful dismissal. Mr. Gibson for the Appellant/Plaintiff
abandoned his claim for damages and pursued only the claim for a declaration.
It appears that the limitation point was taken in limine as a preliminary
point before Harper J. The Court of Appeal rejected Harper J's ruling that
the claim was statute-barred and ordered a retrial.
[7] At the retrial on December 6, 1996 Burch-Smith J held that the delay of
six and a half years in launching the action was unreasonably long and an
abuse of the process of the court, especially since the Appellant, whose
substantive post was Clerk of the Court, was no stranger to the law, lawyers
and the courts. He added that the Appellant never sought to explain his
delay. The claim was dismissed with costs. On June 24, 2000 the Court of
Appeal upheld the judgment of Burch-Smith J.
[8] On August 8, 2001 the Appellant commenced a second action ("the second
action") by a Notice of Motion relying on Articles 40, 142, 144, 214 and 215
of the Constitution claiming:
(a) A declaration that the applicant was compulsorily retired from the
Public Service on the 19th day of November, 1980 (sic).
(b) An Order directing the payment to him of the sum of $200,289.00 (two
hundred thousand, two hundred and eighty nine dollars).
(c) An order directing the payment to him of such sum due to him by way of
superannuation as ex gratia (sic) payment and pension.
(d) Costs.
[9] The following questions arise: (1) whether the second action seeks any
relief that could not have been claimed in the first action and (2) whether
the second action is not defeated by the delay of twenty years in
instituting it.
NATURE OF RELIEF SOUGHT IN SECOND ACTION
[10] Counsel for the Appellant contended that the dismissal of the Appellant
without a hearing and without reasons should be treated as a compulsory
retirement within the terms of section 8(c) of the Pensions Act Cap. 27:02,
which provides:
"(8) No pension, gratuity or other allowance shall be granted to any officer
except on his retirement from the public service in one of the following
cases –
(a) on or after attaining the age of fifty-five years or, in special cases
with the approval of the Minister on or after attaining the age of fifty
years or, in special cases as mentioned in the proviso to section 11, or in
the case of transfer to other public service on or after attaining the age
at which an officer is permitted by the law or regulations of the service in
which he is last employed to retire on pension or gratuity or on or after
attaining the age of fifty-five years whichever is earlier;
(b) on the abolition of his office; or
(c) on compulsory retirement for the purpose of facilitating improvement in
the organization of the department to which he belongs by which greater
efficiency or economy can be effected; or
(d) on medical evidence to the satisfaction of the Minister that he is
incapable by reason of some infirmity of mind or body of discharging the
duties of his office and that such infirmity is likely to be permanent; or
(e) on termination of employment in the public interest as provided in this
Act:..."
[11] Counsel's attention was drawn to the very terse terms of the letter of
dismissal of September 28, 1981, which expressly refers to termination by
dismissal as opposed to termination by reason of compulsory retirement for
the purpose of "facilitating improvement in the organization of the
department". Ultimately, counsel conceded that the court could not deem the
dismissal of the Appellant to be "a compulsory retirement" in the absence of
any evidence of any compulsory retirement for the purposes delineated at
paragraph 8(c) of the Pensions Act Cap. 27:02.
[12] As to the claim for the payment of $200,289.00, counsel for the
Appellant frankly admitted that he was unable to assist the Court as to the
nature of this claim or as to what it constituted. At the end of the day
counsel abandoned this claim. One may note that if counsel who originally
drafted this claim had intended this to cover damages for wrongful dismissal,
this had been raised and abandoned in the first action.
[13] The final subsisting claim in the second action was an order for "superannuation
by way of ex gratia payment and pension". Although it was difficult to
conceive of an order to make a discretionary payment of superannuation
benefits, it is clear that a mandatory order for the payment of
superannuation benefits accrued at the date of dismissal could have been
made in the first action, if (which seems unlikely) a case within section 8
of the Pensions Act had been established. In any event, no claim for accrued
pension benefits i.e. pension benefits already earned was made in the first
action as noted at [6] above. The Appellant therefore has not established an
entitlement to any accrued pension or superannuation benefits under the
Pensions Act.
[14] Counsel for the Appellant next contended that since an order on the
constitutional motion in the second action would make the dismissal a
nullity, the Appellant would be entitled to be treated as if he continued to
be employed up to the normal retirement date of July 31, 1990, with the
result that the Appellant could properly claim all his superannuation
benefits as if he had worked until retirement.
[15] We are conscious of the dual dimension of the public employment
relationship i.e. the public law and the private law elements. The notion
taken from public law that a dismissal may be a nullity presents problems in
terms of the relief appropriate in a case where a considerable period of
time numbered in years has passed since dismissal during which the employee
has performed no services for the employer. One possible approach is to say
that the consequences of such nullity must vary "according to the facts of
the particular case", including whether the employee remained ready, willing
and able to work for the employer notwithstanding the termination and sought
relief in the courts expeditiously: see the approach taken by Lord Bingham
of Cornhill in McLaughlin v H.E. the Governor of the Cayman Islands.[FN1]
However, it may be more appropriate to treat the State as any private
employer, as this Court indicated obiter in Brent Griffith v Guyana Revenue
Authority[FN2]. In this way, a court might focus on the private law
contractual obligation; see also the approach of the Canadian Supreme Court
in Her Majesty The Queen in Right of Newfoundland v Andrew Wells[FN3]. We
need not consider the merits of these contrasting approaches.
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[FN1] [2007] UKPC 50; [2007] 1 WLR 2839 at [14], [16], [17]
[FN2] [2006] CCJ 2 (AJ)
[FN3] [1999] 3 SCR 199
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[16] In the instant case the Appellant indicated at paragraph 8 of his
Statement of Claim in the first action that he no longer wished to be
employed by the Public Service Commission. In those circumstances the
Appellant could not properly be treated as having remained in office till
his normal retirement date. The effect of the Appellant's statement of
intention is that he is not entitled to pension and superannuation benefits
claimed in the second action. We leave open the question whether he might
have claimed damages for being deprived of the opportunity to earn these
benefits.
[17] It is apparent that the second action by the Appellant sought to treat
his dismissal as ineffective for breach of a fundamental right to a fair
hearing and to contend that he had been deprived of pension and
superannuation rights which constituted property. By bringing an action
entirely under the Constitution it was thought the ruling by the Court of
Appeal in the first action might have been circumvented.
[18] Generally, to start proceedings to put forward a claim that could and
should have been advanced in earlier proceedings is an abuse of process:
Henderson v Henderson[FN4] as glossed by Lord Bingham in Johnson v Gore Wood
& Co [FN5]. In Johnson v Gore Wood & Co (a firm) (supra) the House of Lords
considered that the rule that all related claims should be advanced in the
same proceedings was not a rigid one but on the facts of the case held there
was no abuse of process since the plaintiff's financial inability to bring
forward all his claims in the earlier action was caused by the defendant.
Such abuse of process is distinct from cause of action estoppel or issue
estoppel. The public interest is that there should be finality in litigation
and that litigation should be conducted efficiently and economically.
Further, it is in the interest of good administration that disputes between
the State and citizens should be brought to a conclusion as speedily as
possible. All the issues in the second action could and should have been
raised in the first action, especially after Mr. Gibson of counsel abandoned
the action for damages and claimed only a declaration that the dismissal was
unconstitutional. On this ground alone the decision of Singh J and the Court
of Appeal should be affirmed.
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[FN4] [1843-60] ALL ER Rep 378
[FN5] [2002] 2 AC 1 at 30-31.
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DELAY AND ABUSE OF PROCESS
[19] The second action was begun on August 8, 2001 some 20 years after the
dismissal of the Appellant. Jainarayan Singh J delivered judgment on
November 14, 2003. The Court of Appeal in turn pronounced on March 22, 2007
in favour of the judgment of Singh J dismissing the second action.
[20] Chang J.A. in delivering the judgment of the court said this:
"This Court is unable to interfere with the finding of fact made by the
trial judge that, in filing his Motion 20 years after his alleged compulsory
retirement from the Public Service, the Appellant was guilty of unreasonable
delay in asserting or seeking to enforce his claim to property rights in
court. As such, this Court cannot set aside the decision of the trial judge
to dismiss the Appellant's motion for abuse of process on the ground of
undue delay."
For the reasons expressed in [21] and [22] below we endorse this finding.
[21] Article 153 of the Constitution, which is equivalent to section 14 of
the Trinidad and Tobago Constitution, provides for redress for breach of
fundamental rights, but there is no limitation period fixed for access to
the courts for breach of such rights. In Durity v Attorney-General of
Trinidad and Tobago[FN6] although the specific issue was whether the Public
Authorities Protection Act, Chap. 8:03 applied to deprive the Appellant of a
constitutional remedy one year after the cause of action arose, the Privy
Council made general observations on the application of time limits to
constitutional actions brought in respect of fundamental human rights and
freedoms. We endorse the comments of Lord Nicholls of Birkenhead, who said[FN7],
in commenting on Mr. Durity's five-year delay in seeking constitutional
relief for suspension from office:
"In the present case Sinanan J held this was the position regarding Mr.
Durity's application for constitutional relief in respect of the
Commission's decision to suspend him from office. The Commission made this
decision in August 1989. It was over five years later that Mr. Durity first
sought to challenge this decision. As already noted, the Court of Appeal
refused an application by Mr. Durity to amend his judicial review
proceedings to introduce such a challenge. Given the lapse of time and the
absence of explanation, that decision by the Court of Appeal was plainly
correct."
In the sequel to this judgment, Durity v Attorney- General of Trinidad and
Tobago[FN8] their Lordships considered that the continuation of the
suspension for thirty-three months was so unreasonable as to amount to an
abuse of power.
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[FN6] (2002) 60 WIR 448, [2003] 1 AC 405
[FN7] At [36]
[FN8] [2008] UKPC 59
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[22] In support of the views of the courts below, counsel for the
respondents also relied on section 39 of the Interpretation and General
Clauses Act, Cap 2:01 ("where no time limit is prescribed or allowed within
which anything shall be done, such thing shall be done with all convenient
speed"). We do not consider that section 39, incorporated into the
Constitution by Article 232(9), has any direct application to this case
since the Constitution does not mandate the filing of constitutional
proceedings. It is a potent reminder, however, of the need for expedition in
all matters related to the Constitution. In the instant case the dismissal
took place in 1981. While the Appellant is not wholly to blame for the delay
owing to the course the first action took in the courts between 1988 and
June 2000, the root cause of the delay was his tardiness in vindicating his
rights. In August 2001 when he brought this action twenty (20) years after
his dismissal he was in fact seeking to circumvent the decision in the first
action filed in 1988. That first action had already been dismissed for
inordinate unexplained delay in bringing those proceedings. Accordingly, we
find that in the present case there was delay in bringing the second action
amounting to an abuse of process.
CONCLUSION
(1) The second action constitutes an abuse of process in the glossed
Henderson v Henderson sense since all the relief claimed could and should
have been claimed in the first action, which had already been heard and
finally determined.
(2) Even if the breach of a fundamental right could be established, the
delay in seeking redress has been so inordinate that in the absence of a
cogent explanation for the delay, the second action must fail as an abuse of
process.
Accordingly the appeal is dismissed with costs, and the judgment of the
Court of Appeal is affirmed.
[24] We have read the judgment of Pollard J. in draft. We do not consider it
necessary or appropriate to determine in this appeal the issues relating to
the interpretation and application of Articles 142, 144(8) and 153(2) of the
Constitution. Our omission to do so, however, should not be taken as an
indication that we agree with the views expressed by the learned judge on
these issues.
JUDGMENT OF THE HONOURABLE JUSTICE POLLARD, JCCJ:
[25] I agree with the Court of Appeal, that this appeal should be dismissed
for abuse of the process of the court due to inordinate delay in prosecuting
the claim. However, I feel constrained to examine some issues which in my
opinion, are of considerable importance but were not addressed.
[26] Since the lapse of time between the accrual of the alleged right and
filing of the action exhausted a protracted period of approximately 20 years,
during which time several important amendments were made to the substantive
provisions of the 1980 Guyana Constitution and most of which took effect on
7th August, 2001, one day before the Applicant deliberately filed his
constitutional motion, it is important to discern what were the Appellant's
legal rights, constitutional or otherwise, and the appropriateness of the
procedure relied on to vindicate his claim.
WAS THE APPLICANT ENTITLED TO INVOKE THE CONSTITUTIONAL JURISDICTION OF THE
COURT IN
VINDICATING HIS CLAIM?
[27] Although no express, definitive finding was made in this behalf by the
courts below, in my opinion, it is the subject of a compelling inference
that both of the courts below correctly treated the present action as
invoking the protective, constitutional or fundamental rights jurisdiction
of the High Court addressed below. This jurisdiction is prescribed to be
exercised in accordance with the relevant provisions of the Fundamental
Rights (Procedure and Practice) Act 1988. It does appear from the facts
found that the Appellant sought to rely on his alleged entitlement to a
salary and superannuation benefits under the Pensions Act Cap. 28:01 in
order to bring his claim within the provisions of Article 142 of the 1980
Guyana Constitution and, a fortiori, his constitutional right, pursuant to
Article 153 of that instrument, to invoke the special constitutional
jurisdiction of the courts below in order to vindicate such a claim.
[28] In this connexion, it may be appropriate to draw attention to the dicta
of Chancellor George in Mohammed Ali v Teaching Service Commission[FN9]
regarding this peculiar jurisdiction of the High Court and which reads as
follows:
"Paragraph 1 empowered an aggrieved party to apply to the Supreme Court (now
the High Court) for redress in the event of a perceived or anticipated
breach of any of his rights as set out in articles 1-125 (138-151 of the
1980 Constitution) and paragraph 2 gave that court an original jurisdiction,
a jurisdiction hitherto unknown to hear and determine such issues." (emphasis
supplied)
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[FN9] (1991) 46 WIR at 175 e
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[29] The aforementioned dicta of Chancellor George appeared to have found
favour some two decades before with Lord Diplock who averred in Jaundoo v
Attorney-General:[FN10]
"To apply to the High Court for redress was not a term of art at the time
the Constitution was made. It was an expression which was first used in the
Constitution of 1961 and was not descriptive of any procedure which then
existed under the rules of court for enforcing any legal right. It was a
newly created right of access to the High Court to invoke a jurisdiction
which was itself newly created. "
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[FN10] (1971) 16 WIR 141
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[30] The constitutional or fundamental rights jurisdiction of the High Court
was liable to be invoked by any person alleging a breach of his fundamental
rights through the employment of a constitutional action. Establishment by
Counsel of the Appellant's allegations were sought to be made on the basis
of relevant Guyana authorities on the issues.
[31] In this context, I propose to borrow somewhat generously from one such
authority, to wit, Harry v Thom[FN11] in order to put the alleged breach of
the Appellant's fundamental right not to be deprived of his property without
compensation in its proper perspective, as follows:
"It appears, though the point was not taken before us, that the question of
the deprivation of a fundamental human right is involved, the protection of
which is enshrined in the Constitution of Guyana, Art. 8(1) of which reads
as follows:
'No property of any description shall be compulsorily taken possession of,
and no interest in a right over property of any description shall be
compulsorily acquired, except by or under the authority of a written law
and where provision, applying to that acquisition or taking of possession is
made, a written law.'
This fundamental right of the subject to protection from deprivation of
property under the above article has of late received judicial
interpretation in the case of Denis Lilleyman & Others v C.I.R. & A-G- See
Action No. 1905/1962/Demerara; affirmed on appeal to the British Caribbean
Court of Appeal in C.I.R. & Attorney- General v Lilleyman. At C page 509 (ibid)
the view of Cummings J at first instance was upheld: that the phrase "interest
in or right over property of any description" under Article 12 of the
Constitution of British Guiana which is in substance Article 8 of the
Constitution of Guyana means 'money'".
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[FN11] Per Crane J in Harry v Thom (1967) 10 WIR at p 356 EFGH
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[32] In Harry v Thom, the High Court was called upon to determine whether
the aggrieved plaintiff, a teacher, who was entitled to 18 days sick leave
with pay but was only given such leave without pay, had been deprived of her
property within the meaning of the relevant provisions of the 1961 British
Guiana Constitution (now Article 142 of the 1980 Guyana Constitution
currently in force). After an intellectually rigorous and juridically
incisive analysis Crane, J determined:
"On the contrary it seemed to us that Lucille Harry's interest in the
proceedings was patently live seeing that it touched and concerned depriving
her of her money which we have shown to be a fundamental right protected by
the Constitution, unless the discretion to deprive her of it were properly
exercised." (emphasis supplied)
The part of the dictum in bold is particularly relevant in this case which
is essentially concerned with procedural fairness and where the Appellant's
salary, pension and superannuation rights had been arbitrarily terminated
without affording him an opportunity to be heard and, consequently indulging
an act of executive lawlessness.
[33] From its inception, our Court has been called upon to determine whether
pension and superannuation benefits were "property" within the meaning of
Article 142 of the 1980 Guyana Constitution and whose deprivation without
compensation entitled a person aggrieved to invoke the High Courts'
constitutional jurisdiction in accordance with Section 3 of the Fundamental
Rights (Practice and Procedure) Act 1988. There can be no doubt, in my
opinion, that the judgment of Crane J pointedly operates to clarify judicial
determination of the status of pension and superannuation benefits in the
Guyana Constitution. It is common ground that salary, pension and
superannuation benefits are expressible in terms of a monetary value and
which were determined by courts of competent jurisdiction in Guyana to
constitute property within the meaning of Article 142 of the Guyana
Constitution. This Article replicated Article 12 of the 1961 British Guiana
constitution which was in turn replaced by Article 8 of the 1970 Guyana
Constitution without amending its essential juridical thrust.
[34] Whether such property was owned by the Appellant is, in my opinion, a
mixed issue of law and fact to be determined by the courts. Thus, whether
the Appellant fell within the class eligible for pensionable and
superannuation benefits is a question of fact; however, whether such
benefits to which he might have been entitled under the applicable law had
accrued to the Appellant such as to establish entitlement thereto as his
property, is a matter of law. In the instant case, the mere establishment of
accrual did not conclusively prove entitlement which also required an
appropriate certificate from the competent official pursuant to Section 4(3)
of the Pensions Act Cap. 28:01. Further, an employee's benefits might have
accrued and even vested in accordance with relevant provisions of the
Pensions Act Cap 28:01, yet the employee concerned might not have been in a
position to establish entitlement because a competent official or
institutional agency, in the proper exercise of a discretion, had determined
that such benefits must not be paid - hence the relevance and significance
of Crane J's dictum above in bold. It is beyond doubt, however, that the
dictum of Crane J would now have to be qualified in consequence of the
amendment set out in Article 149B of the 1980 Constitution, and
which was intended to reflect the changed ideological orientation of the
post colonial administration.
[35] On the basis of the foregoing it was juridically feasible to determine
whether the Appellant owned property and was entitled to constitutional
relief for property of which he was allegedly deprived contrary to the
Constitution, thereby bringing him within the provisions of Article 142 and
entitling him to invoke the constitutional jurisdiction of the court
pursuant to Article 153. But, even if it is conceded, that the Appellant was
not entitled to vindicate his claim by constitutional action on the basis of
Article 142, an issue which is now before our Court for determination, this
would not be the end of the matter; nor would the failure of the Appellant's
constitutional motion, in my respectful opinion, operate to compromise the
juridical status of the motion as such. At the material time, the Appellant
appeared, in my opinion, to have had the constitutional right to a fair
hearing by reference to the fundamental rule of natural justice and of which,
in my opinion, he was arbitrarily deprived by the improper exercise of an
executive discretion to terminate his employment.
[36] In support of the opinion ventured above, attention must be directed to
Article 144(8) of the 1980 Guyana Constitution which replicated in substance
the provisions of Article 5(1) of the 1961 British Guiana Constitution which
reads as follows:
"In the determination of his civil rights and obligations a person shall be
entitled to a fair hearing within a reasonable time by a court or tribunal
established by law and constituted in such a manner as to secure its
independence and impartiality."
[37] These provisions of the 1961 British Guiana Constitution were
reproduced in the judgment of Chancellor George of the Court of Appeal who,
in construing them, maintained:
"The case, Ridge v Baldwin [1963] 2 WLR 935, has established beyond question
the general principle that where no relationship of master and servant
exists between a statutory or other disciplining body and the employed
person, the latter cannot be removed from his office, or indeed be otherwise
disciplined, without being first informed of the allegations against him and
being given an opportunity to be heard in his defence, .. ,"[FN12]
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[FN12] Mohammed Ali v Teaching Service Commission (1991) 46 WIR at p 173
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[38] Continuing his juridical analysis of these provisions, Chancellor
George asseverated:
"In Re Sarran's Application (1969) 14 WIR 361 the Court came to the
unanimous conclusion that in the exercise of its powers of "removal" under
article 96(1) of the 1966 Constitution, an expression which embraces all
forms of dismissal, the Public Service Commission or any delegate of that
commission acted in a judicial or quasi-judicial capacity, a view which must,
in my opinion, be also applicable to all the other service commissions and
persons who are constitutionally vested with such powers. And, it was stated
in Ridge v Baldwin, an essential requirement for the performance of any
judicial or quasi-judicial function is that the decision-maker observes the
principles of natural justice."
[39] In my considered opinion, the dicta of George C must be seen to apply
aequo vigore to Article 144(8) of the 1980 Guyana Constitution which, in
substance, replicates section 5(1) of the 1961 British Guiana Constitution
and which reads as follows:
"Any court or other tribunal prescribed by law for the determination of the
existence or extent of any civil right or obligation shall be established by
law and shall be independent and impartial; and where proceedings for such a
determination are instituted by any person before such a court or other
tribunal, the case shall be given a fair hearing within a reasonable time."
[40] In support of George C judicial interpretation of the constitutional
provisions referred to, I would wish to call in aid the dicta of Lord
Denning MR in Breen v Amalgamated Engineering Union as follows[FN13]:
"Even though its functions are not judicial or quasi-judicial, but only
administrative, still it must act fairly. Should it not do so, the courts
can review its decision, just as it can review the decision of a statutory
body ... If a man seeks a privilege to which he has no particular claim -
such as an appointment to some post or other - then he can be turned away
without a word. He need not be heard. No explanation need to be given: see
the cases cited in Schmidt v Secretary of State for Home Affairs [1969] 2Ch
149 at 170/171. But if he is a man whose property is at stake, or who is
being deprived of his livelihood, then reason should be given why he is
being turned down and he should be given a chance to be heard. I go further:
if he's a man who has some right or interest, or some legitimate expectation
of which it would not be fair to deprive him without a hearing, or reasons
given, then those should be afforded him, according as the case may demand."
(emphasis added)
Indeed, the fundamental and unqualified importance of procedural fairness in
determining the rights of parties constituted the gravamen of this Court's
determination in Attorney-General of Barbados & Ors. v and Jeffrey Joseph &
Anor.[FN14]
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[FN13] [1971] 2 QB 175 at 191
[FN14] (2000) 69 WIR
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[41] On the concurrent finding of facts established in the present case, it
does appear to be the subject of a compelling inference, as may be deduced
from the dicta of George C and Denning MR cited above, that the Appellant's
case falls squarely within the terms of Article 144(8) of the 1980 Guyana
Constitution entitling him to allege a breach of his fundamental right and,
consequently, to invoke the constitutional jurisdiction of the High Court
pursuant to Article 153 of the Constitution and Section 3(1) of the
Fundamental Rights (Practice & Procedure) Act (1988) which designated the
writ of summons and the originating motion as the prescribed procedures for
invoking the constitutional jurisdiction of the court.
[42] It may also be apposite to mention in this context that by Act. No. 10
of 2003, Article 149B was added to the 1980 Guyana Constitution to provide
that "(e)very public sector worker shall enjoy an absolute and enforceable
right to any pension or gratuity granted to him or her under the provision
of any law or collective agreement of any kind whatsoever." Although the
Appellant's motion was outwith this provision, that provision was designed
to articulate in the clearest of terms the intention of the drafters in
other relevant provisions of the Constitution. The effect of this provision
was to put beyond all doubt the status of pensions and superannuation
benefits as a fundamental right protected by the 1980 Guyana Constitution
and entitling a person alleging a breach thereof to invoke the
constitutional jurisdiction of the court by a constitutional action pursuant
to Article 153 and the Fundamental Rights (Practice and Procedure) Act 1988.
The enhanced, determinate constitutional status of pensionable and
superannuation rights may also be discerned from Articles 214 and 215 of the
Constitution.
DID THE COURTS BELOW FALL INTO EGREGIOUS ERROR BY TREATING THE APPELLANT'S
CONSTITUTIONAL MOTION AS AN ABUSE OF THE PROCESS OF THE COURT?
[43] As intimated above, the High Court below approached the Appellant's
action as a constitutional motion but declined to explain the basis of its
determination. In my opinion, however, a constitutional motion must be
construed to mean an authorized action invoking the constitutional
jurisdiction of the court,[FN15] consisting of its protective fundamental
rights jurisdiction intended to secure the vindication of such rights
allegedly contravened by the impermissible or abusive employment of state
power. There can be no doubt that the mere commencement of an action
prescribed by the Fundamental Rights (Practice and Procedure) Act 1988 on
the basis of an alleged breach of a fundamental right set out in Articles
138-151 of the 1980 Guyana Constitution is sufficient to characterize the
action, correctly, as a constitutional action. In Guyana, the procedures to
be employed, as mentioned above, are a writ of summons or originating motion
prescribed in Section 3 of the Fundamental Rights (Practice and Procedure)
Act 1988. Granting the validity of the definition ventured above, the issue
which fell to be determined was the identification and location in the 1980
Guyana Constitution of the rights allegedly contravened.
----------------------------------------------------------------------------------------------------------------
[FN15] See Attorney-General of Trinidad and Tobago v Ramsaroop [2005] UKPG
15 p. 328.
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[44] But, even granting that the Appellant was entitled to avail himself of
a constitutional action as construed above, the question to be determined is:
was the invocation of his entitlement in the circumstances of this case an
abuse of the process of the High Court? There is persuasive authority
supportive of the view that where another remedy is available and which was
accessible or employable timeously, the court should refrain from exercising
its inherent discretion to grant constitutional relief unless some feature
argued persuasively in favour of such a course of action: Attorney-General v
Siewchand Ramroop[FN16] Indeed, it is settled law that where some
alternative procedure, be it in common law or administrative law is
available, the complainant should not seek redress by way of constitutional
motion.[FN17] However, there is good ground for advancing the opinion that
the position in Guyana has changed over time.
----------------------------------------------------------------------------------------------------------------
[FN16] [2005] 66 WIR 334.
[FN17] Jaroo v Attorney-General of Trinidad and Tobago [2002] UKPG 5
----------------------------------------------------------------------------------------------------------------
[45] Prior to the amendment of the 1980 Guyana Constitution there was a
proviso to Article 153(2) which read as follows:
"Provided the Supreme Court shall not exercise its powers under this
paragraph if it is satisfied that adequate means of redress are or have been
available to the person concerned under any other law."
This proviso was deleted for reasons unknown and operated to bring the
remaining language of the 1980 Guyana Constitution more in line with
relevant provisions of some constitutions of the Commonwealth Caribbean
States. Despite this, however, it is my respectful opinion that the
interpretation to be placed on these instruments must be qualitatively
different, given the intervening juridical metamorphosis of the Guyana
provision. More importantly, this amendment of the 1980 Guyana Constitution
has received authoritative judicial interpretation by the High Court as
discussed below.
[46] It may be argued with considerable persuasive force that the deletion
of this proviso from Article 153(2) removed the obligation, peremptorily
imposed on the High Court by the 1980 Guyana Constitution, to desist from
exercising its fundamental rights jurisdiction "if it is satisfied that
adequate means of redress are or have been available to the person concerned
under any other law." As such, the High Court was no longer obliged to
desist from employing its constitutional jurisdiction where it was persuaded
that the complainant had an adequate alternative procedure in the common law
or administrative law or any other law. The Court of Appeal was not
unmindful nor insensitive to the juridical implications of this important
amendment which must be seen as operating to disapply several judicial
regional determinations to the Guyana jurisprudential landscape despite the
apparent convergence of the language of commitment in relevant regional
constitutional provisions. My opinion is based on a significant development
in the jurisprudence of Guyana which diverged from that of other
Commonwealth Caribbean states.
[47] In Shelly Bryan v Attorney-General & Commissioner of Police,[FN18]
Chancellor Bernard, as she then was, averred:
"However, I have to consider whether the Court can turn a blind eye to the
fact that we are now aware that the proviso to Article 153 has been removed,
and any person alleging breaches of Articles 138 to 151 can now seek redress
in the High Court regardless of whether other remedies are available. Can
this court as a court of last resort continue to hide behind the proviso and
deny the Appellant's right to take whatever action is deemed necessary to
recover money seized by the police, the continued retention of which is no
longer lawful?"
----------------------------------------------------------------------------------------------------------------
[FN18] CA No 88 / 2000
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[48] The language of commitment employed in the proviso which is reproduced
above was peremptory enough to place the Guyana Court of Appeal as the court
of last resort on notice that its deletion constituted an important
modification in the applicable law. The determination of the Chancellor was
made when the Court of Appeal was Guyana's highest court and must be seen to
be conclusively determinative of the issue in the Guyana context.
[49] And, given the construction the Court of Appeal placed on the removal
of this extremely important proviso, it would be disingenuous to determine
that the following obiter of Lord Hope in Jaroo v Attorney-General of
Trinidad and Tobago[FN19] has continuing relevance in Guyana:
"Their Lordships respectfully agree with the Court of Appeal that, before he
resorts to this procedure [by originating motion seeking redress under
Section 14 of the Trinidad and Tobago Constitution which corresponds to
Article 153 of the Guyana Constitution] the applicant must consider the true
nature of the right allegedly contravened. He must also consider whether,
having regard to all the circumstances of the case, some other procedure
either under the common law or pursuant to statute might not more
conveniently be invoked. If another such procedure is available, resort to
the procedure by way of originating motion will be inappropriate and it will
be an abuse of the process to resort to it."
----------------------------------------------------------------------------------------------------------------
[FN19] [2003] UKPC 5 at 39
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[50] Similarly, the determinations of George J in Kent Garment Factor v
Attorney-General[FN20] approving the obiter of Lord Diplock in Harrikissoon
v Attorney-General of Trinidad and Tobago[FN21] and equally inappropriate
dicta of Lord Nicholls in Ramroop v Attorney- General of Trinidad and Tobago[FN22]
must also be disapplied in the developing Guyana jurisprudence. Accordingly
the appeal is dismissed with costs, and the judgment of the Court of Appeal
is affirmed.
----------------------------------------------------------------------------------------------------------------
[FN20] [1991] 46 WIR 177 at 189
[FN21] [1980] AC 265 at 268
[FN22] [2006] 1 AC 328
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