IN THE SUPREME COURT OF BELIZE A.D. 2010

Transcription

1 IN THE SUPREME COURT OF BELIZE A.D CLAIM NO. 436 of 2010 GILBERT BLAIR CLAIMANT BETWEEN AND ATTORNEY GENERAL DEFENDANT Before: Hon. Justice Minnet Hafiz Mr. Said Musa S.C. for the Claimant Ms. Illiana Swift for the Defendant JUDGMENT Introduction 1. This is a claim for damages for wrongful dismissal, compensation due as severance pay for five years of service and the market value for one licensed firearm which was seized by the Police Department. The Claimant, Gilbert Blair was an Immigration Officer II and his services was terminated on 30 th November, 2006 by the Chief Executive Officer in the Ministry of Home Affairs and Public Utilities. 2. The Defendant denies the claim for wrongful dismissal and says that Mr. Blair was a temporary employee and was served with termination letter on 23 rd October, 2006 in accordance with section 24(1) of the Belize Constitution (Government Open Vote Workers) Regulations, Chapter 4 ( Open Vote Workers Regulation ). 1

2 Preliminary Objections 3. At the hearing preliminary objections were raised by Learned Counsel, Ms. Swift as to the form in which the action was brought. This objection was not raised at Case Management. It was raised at Pre Trial but Learned Senior Counsel, Mr. Musa was not present for the Pre Trial. As such, the court heard the arguments on the preliminary objection before trial. Learned Counsel, Ms. Swift further raised the issue of notice under the Public Authorities Act and also limitation period. 4. The objections were heard and dismissed and the matter proceeded to trial. I will give the reasons for the dismissal of the objections raised before proceeding with the determination of the substantive matter. Judicial Review Proceedings or Fixed Date Claim 5. The first objection by the Defendant was that the Claim ought to have been brought by Judicial Review Proceedings or a Fixed Date Claim Form. Learned Counsel submits that the Claimant s claim is misconstrued, procedurally improper and an abuse of the process of the court for it should have been properly brought either by Judicial Review Proceedings or a Fixed Date Claim Form seeking administrative orders. The reason being that the Claimant filed a Claim Form seeking relief in the form of a declaration, namely A declaration that the letter dated November 30 th, 2006 written to the Claimant and signed by Errol Gentle for the Chief Executive Officer, Ministry of Home Affairs, purporting to terminate the Claimant s services as an Immigration Officer II is unlawful and invalid and in clear breach of the rules of natural justice, and void ab inito. 2

3 6. I agree with Learned Counsel, Ms Swift arguments that the application for an administrative order must be made by a Fixed Date Claim in Form 2 pursuant to Rule 56 of the Supreme Court (Civil Procedure) Rules. Learned Senior Counsel, Mr. Musa in the best interest of his client in order to deal with the substance of the matter sought leave of the court to amend the claim to delete the relief sought for the declaration. The court granted the application for the amendment and the claim for declaration was excised. The claim after the amendment was for damages for wrongful dismissal, severance pay and compensation for firearm. No notice under the Public Authorities Act 7. Learned Counsel Ms. Swift also contends that the Claimant s attempt to seek the reliefs by a Claim Form instead of Judicial Review is a clear attempt to circumvent the limitation period, that is, the 3 months period to seek leave for Judicial Review and service of the notice of Action pursuant to section 3 of the Public Authorities Protection Act 1 and as such an abuse of process of the court. 8. The Claim had been amended and the Claimant was no longer seeking administrative relief. However, the question for the court was whether notice should have been served pursuant to section 3 of the Public Authorities Protection Act. Learned Counsel Ms. Swift relying on the cases of Mark Sewell and Duane Sewell v The Minister of Foreign Affairs and The Attorney General, 2 ; and Football Federation of Belize v The National Sports Council, The Minister Responsible for Sports and The Commissioner of Police, 3 submits that the claimant 1 Chapter 31, Laws of Belize 2 Unreported Belize Claim No. 291 of Unreported Belize Claim No. 435 of

4 sought to avoid permission for judicial review and serve notice under the Public Authorities Act and as such the court ought to dismiss the claim. 9. Learned Senior Counsel, Mr. Musa in response submitted that the Public Authorities Act does not apply to this case and since that Act does not apply then section 27(1) of the Limitation Act 4, does not apply. The Public Authorities Act at section 3 provides: 3. (1) No writ shall be sued out against, nor a copy of any process be served upon any public authority for anything done in the exercise of his office, until one month after notice in writing has been delivered to him, or left at his usual place of abode by the party who intends to sue out such writ or process, or by his attorney or agent, in which notice shall be clearly and explicitly contained the cause of the action, the name and place of abode of the person who is to bring the action, and the name and place of abode of the attorney or agent. (2) No evidence of any cause of action shall be produced except of such as is contained in such notice, and no verdict shall be given for the plaintiff unless he proves on the trial that such notice was given, and in default of such proof the defendant shall receive in such action a verdict and costs. 10. It is not disputed that on April 15, 2010, Learned Senior Counsel, Mr. Said Musa wrote to the Director, Office of the Services Commission, Ministry of the Public Service on behalf of the Claimant requesting compensation for 4 Chapter 170, Laws of Belize 4

5 being unfairly dismissed and if there is no settlement within thirty days he will commence legal action in the Supreme Court for damages. The said notice was copied to the Solicitor General, Office of the Attorney General, Belmopan. However, Mr. Musa did not state in the Claim that this notice was served on the Attorney General and I believe Learned Counsel, Ms. Swift was not aware of such notice. Nevertheless, I believe the issue that should be determined is whether the notice under the Public Authorities Act applies in this case. Learned Senior Counsel, Mr. Musa submitted that the Act does not apply in this case since Mr. Blair was a Government employee and the Ministry was aware of this claim. See the case of Belize City Council v Gordon 5 CA (October 28, 1997) where the court held that the Public Authorities Protection Act does not apply to actions for breach of contract. This case, like the instant matter, was a claim for wrongful dismissal. The Court of Appeal at page 367 said, Approached with functional level it seems reasonable to infer that the purpose of the section was to ensure that a public authority would have early notice that legal action was contemplated by reason of the Action of an employee. In the circumstances of a breach of an alleged breach of contract by the Council, there can be no need for such notice. The Council would have been well aware of the intended action in relation to the contract. 11. Based on this authority, I agree with Mr. Musa that the notice under the Public Authorities Act is inapplicable to this case as Mr. Blair was an employee of the Government of Belize and the Attorney General s Ministry was aware of his claim for damages for being unfairly dismissed. 5 Belize Law Reports, Volume 3, page 363 5

6 12. As for the issue on the one year limitation period, I also agree with Mr. Musa that it does not apply in this case because the Public Authorities Act does not apply. Section 27(1) of the Limitation Act provides: 27(1) No action shall be brought against any person for any act done in pursuance, or execution, or intended execution of any act or other law, or of any public duty or authority, or in respect of any neglect or default in the execution of any such Act or other law, duty or authority, unless it is commenced before the expiration of one year from the date on which the cause of action accrued: Provided that where the act, neglect or default is a continuing one, no cause of action in respect thereof shall be deemed to have accrued, for the purposes of this subsection, until the act, neglect or default has ceased. This section shall not apply to any action to which the Public Authorities Protection Act does not apply, or any criminal proceeding. 13. As can be seen here, the section does not apply where the Public Authorities Protection Act does not apply. For these reasons, the preliminary objections were dismissed and the matter proceeded to trial. 14. Issues for determination 1) Whether the Claimant was wrongfully dismissed. 2) Whether the Claimant is entitled to damages for wrongful dismissal. 6

7 3) Whether the Claimant is entitled to compensation due as severance pay for five years of service. 4) Whether the Claimant is entitled to compensation for his firearm. The evidence 15. For the Claimant, Mr. Gilbert Blair was the only witness. For the Defence there was also one witness, Mr. Allen Whyle, Chief Executive Officer of the Ministry of Defence and Immigration. Both witnesses filed witness statements and were cross examined. Claimant s evidence 16. Mr. Blair in his witness statement stated that on December 1 st 2001, he was employed as a temporary Immigration Officer Grade II in the Immigration and Nationality Services Department of the Government of Belize. See Exhibit G.B. 1 for a copy of the letter of Appointment dated 28 November He stated that while serving as an Immigration Officer in the Corozal District, he was attacked by a gang of men while leaving a bar where he was socializing with friends on the night of May 1 st, As a result of the attack he used his licensed firearm to defend himself. In doing so one of the men who attacked him was fatally shot and he was later arrested and charged for the crime of murder. 18. Mr. Blair stated that by letter dated 16 th June 2006, he was informed by the CEO Ministry of Home Affairs that in accordance with Services Commission Regulation 2001, Section 37, he was suspended from the exercise of the powers and functions of his office with effect from May 1 st 2006 until further notice as a result of the police arresting and charging him for the crime of murder. See Exhibit G.B 2 for a copy of the letter 7

8 of suspension. He stated that during the period of suspension he received 50% of his salary as from May 1 st Further he stated that while he was in remand in prison awaiting trial, he received a letter dated 23 rd October 2006 from the CEO Ministry of Home Affairs & Public Utilities informing him that with effect 30 th November 2006 his services will be terminated. See Exhibit G.B. 3 for a copy of the letter of Termination. 20. Mr. Blair said that on the 18 th January 2008 his trial in the Supreme Court was concluded and he was acquitted of the charge of murder and the alternate charge of manslaughter. On the 20 th October 2008 he was informed that the licence for his firearm, a 9 mm brand pistol with Serial No. GTG914 which was retained by the police as an exhibit was revoked by the Commissioner of Police. See Exhibit G.B. 4 for a copy of the letter of revocation. He said that the Police Department kept his firearm and has refused to date to return it to him or to compensate him for its value which at the time of purchase by him was $3, He said that he was also denied any severance pay for his 5 years of service. 21. Mr. Blair stated that after much application and entreaties to various bodies in the Public Service, he received an offer of appointment from the CEO Ministry of National Security to be a temporary security guard in the Police Department on the 5 th November However, when he reported to work on the 17 th November 2008 he was told that there was no work for him and no reason was provided by the Officer in Charge at the Racoon Street Police Station for refusing to employ him. See Exhibit G.B. 5 for a copy of the Offer of Employment. 22. In cross examination, Mr. Blair testified that his position as Immigration Officer was pursuant to the Open Vote Workers Regulations. In re 8

9 examination he said that he was suspended pursuant to the Services Commission Regulations. Evidence for the Defence 23. Mr. Allen Whylie, for the Defence testified that he has been the Chief Executive Officer of the Ministry of Defence and Immigration since 1 st June He stated that Mr. Blair was employed as a Temporary Immigration Officer Grade II at the Immigration and Nationality Services Department with effect from 1 st December, 2001 and the terms and conditions of his employment was in accordance with the Open Vote Workers Regulations. Further, that the Claimant was transferred from the Belize City Office at the Phillip Goldson International Airport to the Immigration Department, Belize Northern Border Station on 13 th September, Mr. Whylie stated that on 24 th May, 2006, the Chief Executive Officer of the Ministry of Home Affairs at the time was informed by the Commissioner of Police that Mr. Blair was arrested and charged for the Murder of Jamid Amin Manzanero on 1 st May, As a result, he was suspended from the exercise of the powers and functions of his office effective 1 st May, 2006 and his salary during the period of suspension was reduced to fifty percent (50%). Further, he stated that on the 30 th November, 2006 Mr. Blair was provided the fifty percent of his salary withheld during the period of his suspension from 1 st May, 2006 to 30 th November, In cross examination, Mr. Whylie confirmed that Mr. Blair was paid the 50% salary that was withheld during the period when he was suspended. He also said that under the Open Vote Regulations, Mr. Blair would have been entitled to his severance pay. 9

10 26. Mr. Whylie further testified that normally when the Commissioner of Police revokes a gun licence, the gun is usually retained by the police in the armour. Further, the owner is normally offered the opportunity to dispose of it or somebody else gets a gun licence then the owner can sell to that person. If not, then the owner of the gun could make a claim to the Commissioner of Police stating the purchase price and age of the gun and suggest a percentage depreciation. Thereafter, the Commissioner would try to settle the matter by informing the Ministry or writing to the Ministry of Finance because he would not have the money within his budget to pay for the gun. Mr. Whylie said that the revocation of the gun licence does not mean that the Commissioner will take the gun without compensating the owner. The reason being that the person had it legally. Issue 1: Whether the Claimant was wrongfully dismissed. Claimant s submissions 27. Learned Senior Counsel, Mr. Musa submits that Mr. Blair was considered a public officer by the Public Services and not an Open Vote worker, at least by the year This is because when Mr. Blair was transferred from Belize City to the Northern Border in September 2004 it was done in accordance with Services Commission Regulations, section 44(3) of Further when Mr. Blair was suspended it was done by powers delegated to the Chief Executive Officer by the Services Commission in accordance with Section 106(5) of the Constitution. 28. Learned Senior Counsel submits that the disciplinary process laid out in the Services Commission Regulations 2001 was not followed before Mr. Blair s services were terminated. That he was not afforded any reason for his dismissal and was not given any opportunity to exculpate himself. Mr. Musa submits that the termination of Mr. Blair s services came even 10

11 before the trial of the criminal charge against him. As such, Learned Senior Counsel contends that the basic presumption of innocence guaranteed under Section 6(3) of the Constitution of Belize was denied to Mr. Blair. Further, that the termination of his services was done in flagrant breach of the rules of natural justice, and as such unlawful. 29. Learned Senior Counsel argued that suspension of the Claimant was unlawful without a hearing. He relied on the following authorities: (1) Maria Guerra v The Attorney General 6 ; (2) Malloch v Aberdeen Corp 7 ; (3) Sharole Saldivar v The Belize City Council 8 ; (4) Gunton v London Borough of Richmond 9 ; (5) Ridge v Baldwin. 10 Defendant s submissions 30. Learned Counsel, Ms. Swift submits that Mr. Blair s claim is not properly founded for he was properly dismissed pursuant to Rule 25 (4) of the Open Vote Workers Regulations. That he was dismissible at pleasure and as such is not entitled to natural justice. 31. Further, Learned Counsel submits that Mr. Blair upon his acquittal was provided the fifty percent of his salary withheld during the period of his suspension. Therefore, his termination was in accordance with the requisite rules and regulations, that being the Open Vote Workers Regulations and as such his termination was lawful and valid. 32. In response to the arguments that the Claimant should have been terminated in accordance with the Service Commission Regulations, Ms. Swift submits that at all times the Claimant was an Open Vote Worker and was properly terminated as an Open Vote Worker pursuant to Rule 25 6 Belize Claim No. 371 of (1971) AER Volume 2 8 Belize Claim No. 459 of I.C.R (1964) A.C

12 of the Open Vote Regulations. Ms. Swift contends that neither Rule 4 of the Open Vote Regulations or Rule 5 (c ) of the Public Service Regulations provide that an Open Vote Worker can become a Public Officer by a mere administrative error/decision. Further, the Claimant has failed to provide any evidence that he was appointed a Public Officer by the Public Service Commission. 33. Learned Counsel contends that citing the Services Commission Regulations in both correspondence dated 13 September, 2004 and 16 June, 2006, respectively, was an administrative error and as such does not deter from the fact that Mr. Blair was employed as an Open Vote Worker. That he was properly suspended and subsequently terminated in accordance with the Open Vote Workers Regulations and as such his termination was lawful and valid. Learned Counsel further submits that pursuant to Regulation 25(4), Mr. Blair was dismissible at pleasure, therefore, he was not entitled to natural justice. Analysis of the evidence 34. Mr. Blair was given a letter of appointment dated 28 th November 2001 which is reproduced in its entirety as follows: 28 th November, 2001 Dear Mr. Blair, Letter of appointment I am pleased to offer you employment as Temporary Immigration Officer Grade II, Immigration and Nationality Services Department with effect from 1st December The post of Immigration Officer II is on payscale 5 of ($8,884 x 528 $18,876 p.a.) and you will be at the $8,844 per annum point. 12

13 Your terms and conditions of employment will be in accordance with the General Workers Regulations and any other instructions which may from time to time be issued. (emphasis mine) Kindly acknowledge in writing your acceptance of this offer within two weeks. Sincerely C.D. Harrison (Mrs.) For Director of Immigration 35. On the 9 th September, 2004, Mr. Blair was given a letter of transfer which is reproduced as follows:... Dear Mr. Blair Letter of transfer Please be informed that the Chief Executive Officer, Ministry of Home Affairs has approved that you be transferred from the Belize City Office to the Immigration Department, Belize Northern Border Station effective 13 th September, This is in accordance with Services Commission Regulation 43(4). The Ministry of the Public Service will be responsible for the payment of your Transfer Grant. Sincerely... Sgd: Gareth Murillo AG. Director Immigration and Nationality Services 13

14 36. On the 16 th June, 2006, a letter of suspension was given to Mr. Blair which is also reproduced in its entirety as follows: 16th June, 2006 Mr. Gilbert Blair Immigration Officer II Thru Director Immigration and Nationality Services Belmopan Dear Mr. Blair, Letter of suspension In accordance with Services Commission Regulation 2001, Section 37 and by virtue of the powers delegated to me by the Services Commission in accordance with Section 106(5) of the Belize Constitution, you are hereby suspended from the exercise of the powers and functions of your office, with effect from 1 st May, 2006, until further notice. Your suspension comes as a result of the police arresting and charging you for the crime of murder for the shooting death of Jarid Manzanero, which occurred in Corozal Town on 1 st May, During your period of suspension you will receive fifty percent (50%) of your salary. Sincerely... Errol Gentle For CEO, Ministry of Home Affairs 37. On 23 rd October, 2006, Mr. Blair was informed by letter of 23 rd October, 2006 that his services will be terminated. That letter is reproduced in its entirety: 14

15 Letter of termination 23rd October, 2006 Mr. Gilbert Blair Temporary Immigration Officer II, Thru Director Immigration and Nationality Services Belmopan Dear Mr. Blair, Please be informed that with effect 30 th November, 2006, your services as a Temporary Immigration Officer will be terminated in accordance with General Workers Regulations Section 24(1). Please treat this as the requisite notice for termination of appointment in accordance with Regulation 24 of General Workers Regulation (Open Vote). Best of luck in your future endeavors. Sincerely,... Errol Gentle For Chief Executive Officer 38. It can be seen from these letters that Mr. Blair was in fact appointed and terminated in accordance with the Belize Constitution (Government Open Vote Workers) Regulations. The evidence also shows that when he was transferred and suspended it was done in accordance with the Service Commission Regulations. The question for the court is whether Mr. Blair is subject to the Service Commission Regulations or the Open Vote Workers Regulation. In my view, the nature of Mr. Blair s appointment is of importance. It is without a doubt that he was employed pursuant to the Open Vote Regulations as can be seen by the letter of appointment. A transfer letter and a suspension letter which refers to the Services Commission Regulations cannot transform the nature of the 15

16 employment. It would have been necessary to rescind the appointment under the Open Vote Regulations and appoint him under the Services Commission Regulations. Under the Open Vote Workers Regulations a worker is employed by the Head of Department. Rule 4 provides: 4. (1) A Head of Department shall engage all workers through the employment exchange of the Labour Department where such a service exists. 39. As for a permanent appointment this is done pursuant to the Public Service Regulations which mandates that a Public Officer must be appointed by the Public Service Commission. Rule 5 (c) provides: 5. Permanent appointments in the Public Service shall be made by the : (c) Public Service Commission in respect of public officers referred to in section 106 of the Constitution. 40. I agree with Learned Counsel Ms. Swift that the correspondence dated 13 September, 2004 and 16 June, 2006, respectively, was an administrative error. Mr. Blair was never appointed by the Public Services Commission and as such the Services Commission Regulations does not apply in this case. Accordingly, I find that the applicable regulations is the Open Vote Workers Regulation. 41. This brings me to the issue as to whether Mr. Blair was wrongfully dismissed. Mr. Blair s letter of notice of termination states that he is 16

17 terminated pursuant to the Rule 24 (1) of the Belize Constitution (Government Open Vote Workers). This section provides for notice to be given if the person was in the Department continuously. It states: 24(1) Notice of termination of a contract of service for an indefinite time given either by the head of Department or the worker, shall be of the following respective durations, if the worker has been in the employment of the Department continuously.. (d) for more than two years four weeks. 42. The letter of termination is dated 23 rd October, 2006 and it states that, Please be informed that with effect 30 th November, 2006, your services as a Temporary Immigration Officer will be terminated. There is no evidence as to the date when Mr. Blair received this letter, but it shows that over one month notice has been given from the 23 rd October, It would be reasonable to say that this was done because Mr. Blair worked for more than two years. This letter as can be seen above does not give any reason for termination. This was done before Mr. Blair was acquitted of the charge of murder as his trial was concluded on 18 th January, As such, it is necessary to determine whether the Defendant had the power to terminate regardless of whether the Claimant s trial had been concluded or not. 43. Learned Counsel Ms. Swift argued that the Claimant had been terminated pursuant to Rule 25(4) of the Open Vote Regulations. Rule 25 (4) provides: 17

18 A worker alleged to have committed a criminal offence of such a nature that it may interfere with the safe and proper conduct of the work may be suspended from duty provided the alleged offence is reported to the police. The payment of wages may cease or be reduced during such suspension at the discretion of the Head of Department, provided that the worker shall have the right to be heard with a legal or union representative if he so wishes. The worker may be dismissed without notice with effect from the date of suspension, only in the event of his being convicted of the offence. If he is not convicted of the offence he shall be paid full wages for the period of suspension without prejudice to the right of the Head of Department to give due notice of termination of his service at anytime. (emphasis added) 44. It is clear that pursuant to this section the Head of Department has the power to terminate even though the person is not convicted. Mr. Blair, however, was terminated even before his trial was concluded so it is obvious that section 25 was not applied by the Head of Department for the termination. This is confirmed by the letter of termination which speaks for itself as it does not mention section 25(4). As such, I disagree with Ms. Swift that Mr. Blair was dismissed at pleasure. What is stated in the letter is section 24(1) which is termination with notice. Under this section no reason has to be given for termination unlike section 25 (1) and (2) which provides for dismissal without notice for good and sufficient cause. Section 25 provides: 18

19 25. (1) The Head of Department may dismiss the worker and the worker may abandon service of the Department without giving notice and without any liability to make payment as provided in regulation 24 if there is good and sufficient cause for dismissal or abandonment of service. (2) Good and sufficient cause for dismissal without notice shall include dismissal: a) when a worker is guilty of misconduct, whether in the course of his duties or not, inconsistent with the fulfillment of the expressed or implied conditions of his contract of service; b) for wilful disobedience to lawful orders given by a Head of Department; c) for lack of skill which the worker expressly or by implication warrants himself to possess; d) for habitual or substantial neglect of his duties; e) for absence from work without permission of the Head of Department or without other reasonable excuse. 45. Since Mr. Blair was dismissed pursuant to section 24(1) and not 25 (1) adequate notice had to be given to him. The evidence shows that Mr. Blair was given due notice as shown by his termination letter. Further, it is not disputed that he was paid the 50% salary withheld. As such, it is my view that he was not wrongfully dismissed. Accordingly, I find that Mr. Blair was not wrongfully dismissed and he is not entitled to damages for wrongful dismissal. 19

20 Issue 2: Whether the Claimant is entitled to compensation due as severance pay for five years of service. 46. Mr. Blair claims compensation due as severance pay for 5 years of service, being $1, Mr. Blair was given a notice of termination pursuant to section 24(1) of the Open Vote Regulations. Section 24 also provides for severance pay. Section 24 (4) provides: (4) In the event of termination of employment on the grounds of redundancy, a worker who has served a minimum of five years shall be entitled to one week s wages for each year of service as severance pay. 47. Since Mr. Blair was given due notice pursuant to section 24 of the Open Vote Regulations that his services will be terminated, it is my view that he should be paid his severance pay pursuant to section 24(4). I find that he is entitled to severance pay of $1, as claimed. Issue 3: his firearm. Whether the Claimant is entitled to compensation for 48. Mr. Blair claims $3, being the market value of his licensed firearm which was retained by the Commissioner of Police after the revocation of his firearm licence. Mr. Blair s evidence is that on the 20 th October 2008 he was informed that the license for his firearm which was retained by the police as an exhibit was revoked by the Commissioner of Police. The letter which is Exhibit G.B. 4 states: 20

21 20th October, 2008 Mr. Gilbert Blair Immigration Officer Thru Officer Commanding Corozal (Police) Division Corozal Town Sir, I refer to your enquiry on 9 th October, 2008 of the return of a 9mm Glock brand pistol with serial number GTG914 which has been retained by the Police as an exhibit. This matter has now been concluded before the Courts. As a result, be informed that in pursuant of Section 26(b) of the Firearms Act, Chapter 143 of the laws of Belize Revised Edition 2000, which states: The Commissioner of Police may in his discretion revoke any licence, certificate or permit granted under this Act (a)... (b) if he is satisfied that the holder thereof is of intemperate habits or of unsound mind, or is otherwise unfit to be entrusted with such firearm or ammunition as may be mentioned in the licence. The Commissioner of Police hereby revokes with immediate effect your 9mm Glock brand pistol license.... Sgd: Allen Whylie For Commissioner of Police It can be seen from this letter to Mr. Blair that the Commissioner of Police did not mention compensation for the firearm. The letter dealt only with the revocation of the licence. 49. Learned Counsel, Ms. Swift submits that there is no constitutional right to bare a firearm and given that baring a firearm is strictly prohibited without a gun licence, such a licence is a privilege granted under the Firearms 21

22 Act. Therefore, since the Claimant s gun licence was revoked by the Commissioner of Police he is not entitled to carry or keep such gun. Further, since Mr. Blair does not have a gun licence, the Commissioner of Police was entitled to forfeit his gun without compensating him. Learned Counsel relied on the case of Burroughs and Another v Rampargat Katwaroo (1985) 40 WIR 287 at 301, where Bernard JA in the Court of Appeal of Trinidad and Tobago held: I find myself in disagreement with this view that the due process clause of the Constitution in relation to Katwaroo and his fundamental right to the enjoyment of property had been violated by the act of the commissioner. In my view, the issue in this case has nothing to do with deprivation of a fundamental right to the enjoyment of property at all. To begin with before there can be the act of revocation under the Act, there must have, first of all, been a grant. In my opinion, the grant of a licence, certificate or permit in circumstance of the kind is a privilege not a right!... Under the Act the possession of a firearm is absolutely prohibited unless the holder thereof is an exempted person. That being so, the exercise by the commissioner of his discretion to allow an applicant to hold and keep a firearm does not clothe it with anything else but that of a privilege. So that it remains and continues to be what it was and always will be, that is to say a privilege. 50. I respectfully disagree with Learned Counsel Ms. Swift that Mr. Blair is not entitled to compensation for his gun. Burroughs case concerns the granting of a gun licence and Mr. Blair is not challenging the revocation of his licence. What he is seeking is compensation for his gun since he cannot carry a gun without a licence. He is not asking for the gun. In my 22

23 view, where gun licences are revoked for a gun which was obtained legally, the owner should be compensated for the gun. As such, I find that Mr. Blair is entitled to compensation for the gun which has been retained by the Commissioner of Police. 51. Mr. Blair s evidence is that the gun cost him $3, The court requested additional evidence of payment for the gun from Mr. Blair and a copy of the receipt for $3, was submitted to the court along with the written submissions. The receipt shows that the gun was bought on 17 th March This shows that the gun is over five years old and therefore a percentage of depreciation has to be deducted from the purchase price. I believe that a fair amount of depreciation is 20%. As such, since the gun cost $3,000. the sum of $600. has to be deducted therefrom which leaves a remainder of $2, The Defence did not offer any evidence as to the value of the gun. Accordingly, I award $2, to Mr. Blair as compensation for his firearm. 53. Costs Mr. Blair is partially successful in his claim and as such will be awarded $2, in cost. 54. Conclusion I find that Mr. Blair was not wrongfully dismissed and he is not entitled to damages for wrongful dismissal. I find that the Claimant is entitled to severance pay of $1, I find that Mr. Blair is entitled to $2, as compensation for the gun which was retained by the Commissioner of Police after revocation of his licence. 23

24 55. Order The Claim for wrongful dismissal is dismissed. I award the Claimant $1, as severance pay. I award the Claimant $ 2, as compensation for the gun. I award cost to the Claimant in the sum of $ 2, Minnet Hafiz Bertram Supreme Court Judge Dated this 2 nd day of November,