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JUDGMENT
[1] Before this Court are three applications: an application for special
leave to appeal against an order of the Court of Appeal dated December 17,
2007, a companion application for special leave to appeal as a poor person
and an application for an extension of time to make these two special leave
applications. On March 17, 2009 we heard full argument on the application
for an extension of time both on the issue of delay in filing the
applications for special leave and the likelihood of success of the appeals.
We formed the view that the appeal was not likely to succeed except in so
far as it challenged the order of the Court of Appeal that the applicant be
paid pension and superannuation benefits to be assessed "on the basis of his
pensionable service from August 1965 to May 1990 i.e. 14 years' pensionable
years of service". We adjourned the hearing to enable counsel to ascertain
and make written submissions on how 14 years was arrived at. Both sides
accepted there was a mathematical error. When the hearing resumed on April
23, we granted the extension of time and indicated to counsel that having
heard extensive argument on the merits of the appeal we would be prepared to
treat the hearing of the application for special leave as the hearing of the
appeal without the need to repeat the argument on the merits of the appeal.
In the result by consent we allowed the appeal so as to permit the
applicant's benefits to be computed on the basis of 24 years' pensionable
service. The appeal was otherwise without merit. Since there was no
agreement on costs, we made an order that the respondents pay the applicant
costs in the sum of $200,000. We now give our reasons for the orders we made.
THE FACTS
[2] Mr. Ramnarine Somrah (hereinafter called "the applicant"), joined the
Guyana Police Force as a constable on August 3, 1965 and was appointed
Inspector of Police on July 2, 1986. By an Order of Dismissal dated May 21,
1990 the Police Service Commission dismissed him from the Guyana Police
Force with effect from November 30, 1989 for being absent from duty without
leave or excuse.
[3] The applicant later brought an action ("the first action") seeking inter
alia an order of certiorari directed to the Police Service Commission
quashing the Order of Dismissal on the ground of excess or lack of
jurisdiction. On April 18, 1991 Claudette Singh J. (as she then was) quashed
the Order of Dismissal. The learned judge, however, made no order for
reinstatement of the applicant in his office as Inspector of Police.
[4] The Commission denied him reinstatement, and some six years later, on
March 27, 1997 he brought an action ("the second action) for an order of
mandamus to compel the Commission to reinstate him. Biscessar J. dismissed
the action with costs. On October 15, 1997 the Court of Appeal affirmed the
judgment of Biscessar J. with costs.
[5] On January 22, 1998 the applicant wrote to the Police Service Commission
requesting that he be compulsorily retired with benefits but the Commission
did not respond to this letter. In the year 2000 he filed a constitutional
motion ("the third action") praying for the following relief:
(a) An order declaring his removal from the Police Force as compulsory
retirement;
(b) An order directing the payment to him of reasonable compensation for
loss of office;
(c) An order for redress for constitutional wrong; and
(d) Costs.
[6] On January 14, 2002 Jainarayan Singh J. (Ag.) ruled that the effect of
the order of Claudette Singh J. quashing the Order of Dismissal in 1991 was
that the applicant remained an Inspector of the Guyana Police Force until he
attained the age of retirement. Therefore the applicant was entitled to an
order for payment of salary, pension and gratuity. The applicant was awarded
the sum of $3,149,021.00 in addition to a monthly pension of $17,828.00 in
respect of the post-retirement period, interest and costs.
[7] The State and the Commission thereafter appealed the judgment of
Jainarayan Singh J. on the following grounds:
(a) The learned trial judge erred in law in awarding pension and gratuity to
the applicant; and
(b) The learned trial judge erred in law in not taking into account the
applicant's duty to mitigate his loss.
[8] On December 17, 2007 the Guyana Court of Appeal allowed the State's
appeal in the third action, setting aside the decision of Jainarayan Singh
J. with costs and ordering that the applicant be paid pension and other
superannuation benefits to be assessed and calculated on the basis of 14
years' pensionable service.
[9] The applicant thereafter filed a motion in the Guyana Court of Appeal
seeking leave to appeal to the Caribbean Court of Justice against the order
of December 17, 2007. The Court of Appeal (Ramson, B. S. Roy,
Cummings-Edwards JJA.) refused leave to appeal on April 18, 2008.
[10] On August 29, 2008 the applicant applied to this Court for (a) special
leave to appeal pursuant to section 6(d) of the Caribbean Court of Justice
Act 2004 (No. 16) and (b) special leave to appeal as a poor person.
[11] On September 12, 2008, the Registrar of the Caribbean Court of Justice
wrote to the attorney-at-law for the applicant, Mr. B. E. Gibson, indicating
that the application for special leave had been filed out of time. The
Registrar again wrote to Mr. B. E. Gibson on October 14, 2008 and December
1, 2008 regarding the need to file an application for an extension of time.
In her letter dated December 1, 2008 the Registrar informed Mr. B. E. Gibson
that if his client did not file an extension of time application on or
before December 15, 2008, a notice to show cause why the applications should
not be struck out would be issued.
[12] On December 12, 2008 the applicant filed an application for an
extension of time to file the special leave applications.
[13] It was in this context that the special leave application and the
application for extension of time came up before us.
EXTENSION OF TIME APPLICATION
[14] Rule 5.3 of the Caribbean Court of Justice (Appellate Jurisdiction)
Rules 2005 as amended ("the Rules") entitles an applicant to seek an
extension of time for complying with any time limit prescribed by those
Rules. In the instant case the applicant had failed to file the application
for special leave within 21 days of the refusal of leave to appeal to this
Court on April 18, 2008, as required by Rule 10.12 of the Rules.
[15] In order to succeed on an application for an extension of time an
applicant must give a cogent explanation for not complying with the Rules
and, in the case where the application is to extend the time for appealing,
demonstrate that the appeal has a realistic chance of success.
[16] The applicant relied on the fact that Mr. B. E. Gibson, attorney-at-law
for the applicant left Guyana shortly after the Court of Appeal's refusal of
leave to appeal. A medical certificate indicated that Mr. Gibson had
undergone surgery on March 18, 2008 and again in July 2008 in New York.
Indeed on April 18, 2008 Mr. Patrice Henry held Mr. Gibson's brief in his
absence. It was urged upon us that Mr. Gibson's indisposition abroad and his
return to Guyana ostensibly on July 12, 2008 were unforeseeable
circumstances within Rule 5.3(2) of the Rules empowering this Court to
extend the time for applying for special leave upon proof that
non-compliance with a time limit was due to unforeseeable circumstances.
[17] Regardless of the period and duration of Mr. Gibson's illness, it must
have been apparent to counsel holding his brief, Mr. Henry, that an
application for special leave had to be filed within 21 days. Such an
application involved no complexity. The applications for special leave were
filed on August 29, 2008 in the interval between Mr. Gibson's return to
Guyana on August 2 and his departure abroad on October 26, 2008.
[18] On Mr. Gibson's return to office on November 21, 2008 he would have
found at least two letters, dated September 12 and October 14, 2008, from
the Registrar of the CCJ pointing out that the applications for special
leave were out of time. A third letter to the same effect, dated December 1,
2008 seems to have resulted in this application for an extension of time.
[19] There was a weak attempt to excuse the delay on the basis of the
inability of the applicant to pay legal fees to two other lawyers whom he
consulted. It is difficult to accept impecuniosity as an excuse for delay
when the applicant is represented at the filing of the application for
special leave and for an extension of time by three lawyers, Mr. Gibson, Ms.
Mandisa Breedy and Mr. Patrice Henry. At the oral hearing of these
applications he was also represented by more than one counsel.
[20] The reasons advanced by the applicant for late filing of the
application are therefore rejected. The only remaining question is whether
the appeal has a realistic chance of success. Both counsel agreed in their
written submissions for the April 23 resumed hearing that there was a
mathematical error in the Court of Appeal's computation of the period of the
applicant's service though the respondents had not accepted this when the
application was first heard on March 17. The respondents declared that they
"have no objection to the Applicant being paid pension on the basis of 24
years of service".
[21] The respondents contended very forcefully that the computational error
was not a sufficient ground for an extension of time. The respondents argued
that the Rules must be strictly observed: Hing v Hing (1978) 25 WIR 391;
Ratnam v Cumarasamy [1965] 1 WLR 8; Revici v Prentice Hall Inc. [1969] 1 WLR
157; Evelyn v Williams (1962) 4 WIR 265. Hing v Hing was principally
concerned with an application to extend the time for lodging security for
costs of an appeal after the appeal had been automatically dismissed for
failure to do so within the prescribed time. The Court of Appeal of Guyana
refused to extend the time and dismissed the application mainly on the
ground that no satisfactory reason was advanced for the delay in complying
with the order. Nonetheless, Chancellor Haynes envisaged (at p. 400 I) that
if the applicant's grounds of appeal or affidavits contained "sufficient
undisputed matters to indicate that a miscarriage of justice might have
taken place in the court below" he would have been in favour of the
application. Similarly, in an application such as the present, if the
applicant could persuade the Court that it would be a miscarriage of justice
for special leave to be denied, the Court ought in the interests of justice
to grant an extension of time: see rules 1.3 and 1.4(2) of the Rules. In the
present case it would be a miscarriage of justice to prevent the applicant
from making an application for leave to appeal on a ground, which, on the
concession made by the respondents, must succeed on the hearing of the
appeal. We therefore extended the time for filing the application for
special leave to August 29, 2008, the date of filing the special leave
application.
THE SPECIAL LEAVE APPLICATION AS THE HEARING OF THE APPEAL
[22] Since the special leave application is made to this Court after the
refusal of leave by the Court of Appeal, one needs to be reminded (a) that
the present application is not by way of appeal and (b) that the grant of
special leave is always a matter of discretion and never a matter of right.
Therefore it matters not whether an appeal to this Court from the Court of
Appeal was "as of right" because of the value of the subject-matter of the
appeal or its constitutional content. In Brent Griffith v Guyana Revenue
Authority (2006) 69 WIR 320 this Court said at [27]:
"Thus it is a condition precedent of the exercise of that discretion in
favour of the applicant that he or she should have an arguable case.
Accordingly where it is clear that the appeal as presented is wholly devoid
of merit and is bound to fail special leave will not be granted."
[23] In the present case it is clear that there is merit in the ground of
appeal based on the mathematical error. The parties therefore agreed to
treat the special leave application as the appeal and that the appeal be
allowed on that ground.
[24] We emphasise that on a special leave application the applicant must
show that he or she has an arguable appeal. In the instant application we
hold that, apart from the computation point, the applicant did not have an
arguable case.
[25] Our primary reason for treating his case as not being arguable but for
the computation point is that the applicant in the second action could have
and should have brought forward for adjudication all claims concerning his
wrongful and/or unlawful and/or unfair dismissal including issues of
constitutional redress and compensation arising therefrom: see Henderson v
Henderson [1843-60] All ER Rep. 378 as explained by Lord Bingham in Johnson
v Gore Wood & Co. [2002] 2 AC 1, 30-31 and by Nelson and Hayton JJ. in
Edwards v Attorney-General [2008] CCJ 10 (AJ) at [18]. Therefore, the
attempt in the third action to relitigate issues arising out of the
dismissal or to launch what is in effect a collateral attack on the judgment
of Biscessar J and the Court of Appeal constituted a flagrant abuse of
process: see Chokolingo v Attorney-General of Trinidad and Tobago [1981] 1
WLR 106, 110-112; Attorney-General of Trinidad and Tobago v McLeod [1984] 1
WLR 522, 580.
[26] The applicant further contended that the Court of Appeal failed to
consider that his employment had a constitutional element and that private
law remedies were not applicable. The Court of Appeal rightly held that
deprivation of office was not deprivation of property within article 142(1)
of the Constitution. Nor can non-payment of superannuation benefits, for
which one can sue, be regarded as deprivation of "property" within article
142: see [50] of Brent Griffith v Guyana Revenue Authority (supra).
[27] The only public law element in the third action was the constitutional
garb in which it was clothed in an attempt to attack the finality of the
Court of Appeal's decision of October 15, 1997 in the second action. The
courts must be vigilant to see that actions for the recovery of a debt,
especially a statute-barred debt, and matters which are res judicata are not
dressed up in the finery of a constitutional motion: Harrikissoon v
Attorney-General of Trinidad and Tobago [1980] AC 265; Thakur Persad Jaroo v
Attorney-General (2002) 59 WIR 519; Attorney- General of Trinidad and Tobago
v Ramanoop (2005) 66 WIR 334 at [25]-[29].
[28] Even if the third action was genuinely a constitutional motion it would
have been defeated by the delay of ten (10) years in commencing proceedings.
It is now settled that delay may defeat a constitutional motion: see Edwards
v Attorney- General of Guyana [2008] CCJ 10 (AJ) (20 years) and Sealey v
Attorney-General of Guyana [2008] CCJ 11 (AJ) (16 years).
[29] For these reasons we treated the appeal as unarguable apart from the
ground based on the error of computation.
[30] As regards the application for special leave to appeal as a poor person,
we were not persuaded that the applicant, armed as he was with three counsel
at the time of filing and two counsel at the hearing of the applications and
the appeal, was an indigent person within the meaning of rule 10.17 of the
Rules, although one ground of his appeal has by consent succeeded.
COSTS
[31] On the issue of costs the applicant urged that if he had not brought
this appeal the order of the Court of Appeal as to the length of his
pensionable service would have stood. Counsel for the respondents, on the
other hand submitted (a) that the applicant should have pointed out the
computation error to the Court of Appeal and (b) that the appeal had
succeeded only on a minor point and there was no merit in the appeal
otherwise.
[32] The Court resolved the issue of costs in favour of the applicant since
(a) the applicant had to come to this Court to obtain the concession
contained in the consent order and incurred costs in doing so (b) the
respondents on March 17 had resisted the appeal as to the applicant's length
of pensionable service even after it seemed that a mathematical error had
been made, though on April 23 they conceded this. Further, the respondents
also had a duty to draw the court's attention to such error. In the result
the Court ordered that the respondents pay the applicant costs in the sum of
$200,000.
CONCLUSION
[33] In summary we make the following orders:
(1) The application dated December 12, 2008 for an extension of time within
which to appeal is granted.
(2) By consent the application for special leave is treated as the hearing
of the appeal.
(3) By consent the appeal is allowed and the order of the Court of Appeal
dated December 17, 2007 is varied so that the applicant is paid pension and
other superannuation benefits to be assessed and calculated on the basis of
24 years of pensionable service.
(4) The application for special leave to appeal as a poor person is refused.
(5) The respondents shall pay the applicant's costs in the sum of $200,000. |
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