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INTRODUCTION
[1] The Appellant joined the Police Service on 16 June, 1960. He had
attained the rank of Senior Superintendent when the Police Service
Commission by a letter dated 12 November 1984 purported to terminate his
services "in the public interest with immediate effect", though providing no
specific reason for such termination.
[2] On 12 October 1987 from a Georgetown, Guyana address the Appellant
petitioned the President of the Republic of Guyana "to re-open this matter"
of his dismissal and compensate him for his years of service, no gratuity or
pension having been given to him. There was no response.
[3] On 22 January 2001 the Appellant wrote from another Georgetown address
to the Chairman of the Police Service Commission, enclosing a copy of the
petition to the President and requesting the Chairman to enquire into what
was happening in respect of the petition. There was no response.
[4] On 20 February 2001 the Appellant filed a motion in the Matter of
Articles 142, 214 and 215 of the Constitution of Guyana and of an
Application by John Sealey. He sought
(a) a declaration that his "removal from the Police Force was
unconstitutional, null and void, and wrong in law and a breach of a personal
right guaranteed by the Constitution";
(b) a declaration that he "was compulsorily retired from the Police Force
and is entitled to his salary and superannuation benefits";
(c) an order directing the payment of such sums due and owing to him as
compensation for his service in the Police Force; and
(d) costs.
[5] In view of the delay from 12 November 1984 to 20 February 2001 Roy J
dismissed the motion as an abuse of the court's process, treating it as a
constitutional motion seeking redress under Article 153 of the Constitution.
The Court of Appeal dismissed the appeal, Kissoon JA on its behalf stating,
"It is unjust to give a remedy to the appellant due to his neglect in filing
his proceedings in a timely manner. His undue delay without any explanation
has rendered the proceedings an abuse of the Court's process which will
undermine the integrity of the judicial system."
[6] The Court of Appeal subsequently granted the Appellant leave to appeal
to the Caribbean Court of Justice ("CCJ"), without specifying any particular
ground for granting leave to appeal. Later, the Appellant's then counsel
wrote to the CCJ advising that the leave related to section 6 (d) of the
Caribbean Court of Justice Act, No 16 of 2004. This provides for an appeal
as of right "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." This is the jurisdiction conferred by Article 153 for
breaches of Articles 138 to 151 inclusive.
[7] Having heard the appeal, we endorse the above remarks of Kissoon JA.
THE APPELLANT'S CLAIMS IN THIS APPEAL
[8] Counsel for the Appellant abandoned the null and void claim in (a) of
his motion (see [4] above), so that it also followed that the claim in (b)
for salary under a subsisting contract could not be pursued. He also
accepted that claim (b) should refer not to the Appellant being "compulsorily
retired" within section 8 (c) of the Pensions Act, Cap. 27:02 but to "termination
of his employment in the public interest" within section 8(e). Thus from the
time of such termination the Appellant was entitled to the superannuation
benefits provided for in section 9 of that Act and made mandatory by Article
214 of the Constitution.
[9] Under section 9
"the Minister may, if he thinks fit, grant such pension, gratuity or other
allowance as he thinks just and proper, not exceeding in amount that for
which the officer would be eligible if he had retired from the public
service in the circumstances described in paragraph (b) or (c) of the last
preceding section."
[10] Article 214 (1) converts the Minister's "may" into "shall," unless the
appropriate Commission concurs in a refusal to grant the benefits or a
decision to withhold or reduce them. Article 214 (2) requires the formerly
discretionary amount of the benefits to be granted to the officer, to be "the
greatest amount for which he is eligible unless the appropriate Commission
concurs in his being granted benefits of a smaller amount." But for these
provisions the Appellant would have had no enforceable right to
superannuation benefits as the holder of a pensionable office in the public
service, so that that right can be regarded as arising by virtue of the
Constitution. However, the right to a specific sum of money made payable to
a person by a provision in the Constitution, but not falling within the
protection afforded by Articles 138-151, has nothing to do with any breach
of fundamental rights or freedoms. It is in essence a simple action to
recover a debt.
[11] Counsel therefore submitted that, as alleged in paragraph 8 of the
Appellant's affidavit in support of his Notice of Motion and referred to
therein, the Appellant's right to superannuation benefits under Article 214
was a fundamental right guaranteed by Article 142 of the Constitution. It
was thus enforceable under Article 153 and no limitation period applies to
Article 153 claims as none exists under the Fundamental Rights (Practice and
Procedure) Act, Cap 3:03 or under Article 40(2) of the Constitution bringing
into effect Articles 138-151.
THE IMPACT OF THE APPELLANT'S DELAY IN INVOKING ARTICLE 153
[12] While no specific limitation period applies to claims under Article
153, a claimant cannot wait for as long as he likes before bringing a claim.
Kissoon JA held the Appellant's "undue delay without any explanation ...
rendered the proceedings an abuse of the Court's process", while Roy J held
such delay to be "a misuse of the court's constitutional jurisdiction". The
Appellant's counsel could only speculate as to what excuse, if any, there
might have been for the undue delay.
[13] We fully agree with Kissoon JA and Roy J in the light of the inordinate
delay of over sixteen years from the time of the Appellant's dismissal and
of over thirteen years from the petition to the President. We note that in
Durity v Attorney General of Trinidad and Tobago[FN1] the Privy Council
considered that undue delay without a cogent explanation in taking legal
proceedings for redress for contravention of Constitutional fundamental
rights and freedoms could amount to an abuse of the court's constitutional
jurisdiction. It then considered that the lapse of five years in seeking
such redress amounted to inordinate delay in the absence of any cogent
explanation. It is in the public interest that claims do not become stale,
the courts assisting those who are vigilant to enforce their claims, but not
those who sleep on them. Legal disputes need to be resolved in a timely and
efficient manner: see Edwards v Attorney General of Guyana and The Public
Service Commission[FN2].
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[FN1] (2002) 60 WIR 448, [2003] 1 AC 405 at [36]
[FN2] CCJ Appeal No 3 of 2007
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CONCLUSION
[14] Without the need to examine whether or not there was a breach of
Article 142, the appeal is dismissed, the Appellant to pay the Respondents'
costs of this appeal. |
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