IN THE HIGH COURT OF JUSTICE. Between PAUL CHOTALAL. And THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. C.V Between PAUL CHOTALAL Claimant And THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendants Before the Honourable Mr. Justice Frank Seepersad Appearances: 1. Mr. Rennie Gosine for the Claimant 2. Ms. Stephenie Ruth Sobrian and Ms. Kelisha Bello for the Defendant Date of Delivery: 30 th June, 2014 DECISION Page 1 of 10

2 1. Before the Court is the Defendant s Notice of Application filed on the 10 th March 2014 in which the Defendant seeks the following reliefs: a. That paragraphs 5, 7, 9, 10, 11, 13, 14, 17, 18 and the first two lines of paragraph 8 from the words, At the Penal Police Station, the Claimant was placed in a cell. The Claimant was falsely imprisoned for a period of about fifteen (15) hours. of the Statement of Case of the Claimant, filed on 16 th January, 2014 be struck out in its entirety pursuant to Rules 26.1(1)(1), Rule 26.2.(1) (a), Rule (b) and Rule 56.7 of the Civil Proceedings Rules 1998 ( the CPR ); b. The Claimant s claims for damages for assault, false arrest and false imprisonment be struck out pursuant to Rule 26.1 (k), (l) and (w) of the CPR; c. The Claimant s claims for constitutional relief be struck out pursuant to Rule (b) and Rule 56.7 of the CPR and the claim for damages for malicious prosecution be extended pursuant to Part 10.3 of the CPR; and d. The costs of the matter be paid by the Claimant to the Defendant, to be assessed in default of agreement. 2. The issues to be determined are: i. Whether the Claimant s claims for damages for assault, false arrest and false imprisonment have been instituted after the expiration of the limitation period pursuant to section 3(1) a of the Limitation of Certain Actions Act Chp. 7:09 ii. Whether the said claims should be struck out pursuant to section 26.1(k), (l) and (w) of the Civil Proceedings Rules (1998) as amended. Page 2 of 10

3 iii. Whether the Claimant s claims for constitutional relief should be struck out. iv. Whether paragraphs 5, 7, 9, 10, 11, 13, 14, 17, 18 and the first two lines of paragraph 8 from the words, At the Penal Police Station, the Claimant was placed in a cell. The Claimant was falsely imprisoned for a period of about fifteen (15) hours. of the Statement of Case should be struck out. Determination of issues (i) and (ii) 3. The Defendant relied on section 3 (1) a of the Limitations of Certain Actions Act Chp. 7:09 and submitted that the Claimant s claims as outlined at reliefs (a) and (c) of his Statement of Claim are statue barred and should be struck out. 4. In his submissions filed on the 29 th May 2014, Counsel for the Claimant conceded that the aforementioned claims became statue barred as at the 11 th November Accordingly the Claimant s claims for damages with respect to false arrest, battery and false imprisonment are hereby struck out. Issue iii 5. The Defendant submitted that the Claimant s claims in relation to the declaratory reliefs sought were not made in the proper form and that the requirements laid out at Rule 56.7 of the CPR had not been met. Counsel for the Defendant referred to the Court to the decision of the Board of the Privy Council in Antonio Webster v. The Attorney General of Trinidad and Tobago (2011) UKPC 22, and submitted that the Claimant s claims for constitutional relief ought to have been instituted by way of a fixed date claim form. Page 3 of 10

4 6. The Court was also asked to consider the decision of the Board in Thakur Persad Jaroo v. The Attorney General of Trinidad and Tobago (2002) UKPC 5 where the Board noted at paragraphs 2 as follows: The Appellant s case for the return of his vehicle was capable of being dealt with relatively simply in the ordinary courts in Trinidad and Tobago by means of processes which were available to him under the common law. It has been complicated by the fact that he chose to apply instead by way of an originating motion under section 14 of the Constitution of the Republic of Trinidad and Tobago 1976 to the High Court. The question whether it was appropriate for him to assert his constitutional rights in a case of this kind lies at the heart of this appeal. 7. In Thakur Persad Jaroo the Board upheld the conclusion of the Court of Appeal that the motion under s. 14(1) of the Constitution was an abuse of process because the appropriate claim was an action at common law. At paragraph 29 of the judgment the Board stated: The right to apply to the High Court which s.14 (1) of the Constitution provides should be exercised only in exceptional circumstances where there is a parallel remedy. 8. In Antonio Webster (supra) at paragraph 20 the Board stated: 20. In the present case and irrespective of the erroneous procedure which he adopted the Appellant, by his attorney, made two decisions about how to formulate his claim: one of them was right and the other was wrong. The right decision was primarily to formulate his claim, unlike the claim in Ramanoop, as being for damages in tort. The wrong decision was to include subsidiary claims for the three declarations: for they were redundant. Upon the filing of the Defence then, even on the assumption, in the Appellant s favour, that he had hitherto been unaware of its likely content, it should have become even more obvious to him Page 4 of 10

5 that the declarations had been wrongly included and that he should apply for permission to amend his claim form and his statement of case so as to delete them. Instead, once Pemberton J. had resolved to determine, as a preliminary issue, whether they had rightly been included, he argued in the affirmative; and indeed he appealed against her negative conclusion. Even at that stage, however, his then advocate came close to recognizing the folly of the appeal. For, in his written submissions to the Court of Appeal, he wrote: It is noteworthy that the Appellant sought no damages for the breach of his constitutional right but same is pleaded in his grounds for exemplary damages The Court can therefore articulate and make a finding that the Appellant s constitutional rights were violated and factor this into the award of exemplary Common Law damages. This cannot however be done in the absence of a declaration or finding that his constitutional rights were breached. (Italics supplied) The advocate was correct to submit that, were the Appellant to secure an award of exemplary damages reflective of breaches of his constitutional rights, the Appellant needed a finding that they had been broken. But the advocate was also correct to submit that a declaration to such effect would be alternative to such a finding and that there would be no additional need for it. 9. Having regard to the authorities, the Defendant submitted that the Claimant was wrong to have included prayers for constitutional relief within his claim, which was in essence a claim in tort and where the Claimant failed to demonstrate any special or exceptional circumstances. Counsel for the Claimant referred to the decision of Jamadar JA in the Court of Appeal in Antonio Webster, where the learned Justice of Appeal said: It is clear that Part 56, CPR, 1998 requires a claim for constitutional relief to be brought by Fixed Date Claim Form. It is also clear that this procedure is consistent with section 14 of the Constitution. However, this does not necessarily mean that a claim made by Claim Form which raises constitutional issues is an abuse of process or nullity Thus, the fact that a matter giving rise to Page 5 of 10

6 constitutional relief is commenced by Claim Form is not necessarily fatal to that action and does not necessarily render such a matter an abuse of process or a nullity. 10. Counsel for the Claimant also referred the Court to the case of Steve Singh v. The Attorney General CV in which the Claimant filed a claim for damages for false imprisonment as well as declaratory reliefs and the said action was instituted by an ordinary Claim Form. In the said action Rajkumar J stated at paragraph 4: I find that the Claimant is not precluded from seeking constitutional relief as well as private law relief in the same action, even if is commenced by Claim Form. The decision in Antonio Webster v. The Attorney General of Trinidad and Tobago C.A. Civ 113/2009 cited by the State, has been delivered by the Court of Appeal and apart from being bound by it, I entirely agree with it. 11. Counsel for the Claimant submitted that the reliefs sought in the Webster and Steve Singh cases are similar to the Claimant s reliefs and that the Claimant s claim for declaratory constitutional reliefs ought not to be struck out and that the decision in Steve Singh (supra) remains good law. Resolution of the Issue 12. At paragraphs 13 and 14 of the Webster decision, the Board of the Privy Council stated: It is clear that the Appellant was wrong to make his claim in Form 1. He should have made it in Form 2, as a fixed date claim, and have applied to the court under Rule 56.9(2) (b) for a direction that the whole application be dealt with as a claim and for directions for the filing of affidavits or witness statements, for the attendance of their makers for cross-examination if appropriate and for disclosure etc. under Part 26. The Board does not accept the Attorney General s submission which is not reflective of the treatment of the rule by the Court of Appeal that Rule 56.9 applies only to claims wrongly made as a fixed date claim in Form 2. But the Appellant s error in that regard was, of itself, likely to be of no consequence. So far as material. Rule 26.8 provides as follows: Page 6 of 10

7 (3) Where there has been an error of procedure or failure to comply with a rule, practice direction, court order or direction, the court may make an order to put matters right. Had it been appropriate for the claim for declarations to remain as part of the Appellant s claim, Rule 26.8(3) would, albeit probably on terms as to costs, surely have rescued him from his error. 13. It is therefore possible to permit a claim for constitutional relief as well as private law relief in the same action, even if the action was wrongly instituted by way of an ordinary claim form and the Court can issue the appropriate directions under Part 26.8(3) of the CPR. However, the Court should first consider whether it is appropriate for the declaratory relief sought to remain as part of the Claimant s case. 14. In the Antonio Webster (supra) case the Board raised this question at paragraphs 15 of the judgment and considered the said issue at paragraphs 16, 17, 18, 19 and 20. At paragraph 20 the Board felt that the decision to include the claims for the declarations was wrong and that the declarations were redundant. 15. The declaratory reliefs sought by the Claimant in the instant case are substantially similar to the declarations that were sought in the Antonio Webster case. Accordingly, this Court is of the view that the said claims for declaratory relief ought not to remain as a part of the Claimant s claim and they should be and are hereby struck out. 16. In addition, Counsel for the Defendant submitted that there has been substantial delay by the Claimant in instituting the instant action, with no reason for the delay being properly advanced, and that in such a circumstance the Court ought not to sanction a claim for constitutional relief. 17. Counsel also cited the case of Phillip Gerard Murphy v. Ireland and the Attorney General (1993 No. 3310P). In that case Carrol J, considered that the Plaintiff s claim while being for damages for breach of constitutional rights, also held all the hallmarks of the tort of procuring a breach of contract and that the statutory periods applicable to the tort should apply. This Court is however not prepared to apply that reasoning to the facts Page 7 of 10

8 of the instant case, the Constitution of the Republic of Trinidad and Tobago does not provide for a limitation period during which redress for breaches of fundamental rights, should be sought. 18. The charges against the Claimant were determined on the 2 nd July 2010 and the action however was filed on the 16 th January In the instance case no explanation has been advanced as to why the claimant took nearly four years after the charges were dismissed to institute the claim for declaratory relief under the Constitution. There is an onus on the Claimant to act promptly and with expedition. The Court must jealously guard the Constitution and complaints of violation demands the Court s urgent attention, if therefore there is delay in the institution of a claim in which complaints of breaches of constitutional rights are made, it is incumbent upon the Claimant to explain his delay. 20. In Felix Durity v. The Attorney General (2002) UKPC, the Board of the Privy Council pointed out that not only must a reason for the delay be advanced but, if the complaint being made was susceptible to adequate redress had a timely application been made then the delay in seeking constitutional relief would work against the Applicant unless there is some compelling reason and stated at paragraph 35: [35] In this context the Board considers it may be helpful if it makes certain general observations. When a Court is exercising its jurisdiction under s 14 of the Constitution and has to consider whether there has been delay such as would render the proceedings an abuse or would disentitle the Claimant to relief, it will usually be important to consider whether the impugned decision or conduct was susceptible of adequate redress by a timely application to the Court under its ordinary, non-constitutional jurisdiction. If it was, and if such an application was not made and would now be out of time, then, failing a cogent explanation the Court may readily conclude that the Claimant s constitutional motion is a misuse of the Court s constitutional jurisdiction. This principle is well established. On this it is sufficient to refer to the much repeated cautionary words of Lord Diplock in Harrikissoon v. A.G. (1979) 31 WIR 348 at 349. An application made under s Page 8 of 10

9 14 solely for the purpose of avoiding the need to apply in the normal way for the appropriate judicial remedy for unlawful administrative action is an abuse of process. 21. This Court is therefore of the view that the Claimant s unexplained delay in instituting his claims for constitutional relief is unacceptable and should not be allowed. The final issue to be determined in whether paragraphs 5, 7, 8 line 2, 9, 10, 11, 13, 14, 17 and 18 of the Statement of Case ought to be struck out. 22. Having regard to the position as it relates to the claim for damages for arrest, battery and false imprisonment, paragraphs 5, 7, 18 (iii), 18 (iv), 18 (v) and 18 (vi) of the Statement of Case should be and are hereby struck out. In addition the words where he was falsely imprisoned for approximately ten (10) days at paragraph 11 line 4, should be and are hereby struck out and the words falsely imprisoned and at paragraph 18 (ii) should be and are hereby struck out and the words the Claimant was falsely imprisoned for a period of about fifteen (15) hours at paragraph 8 line 2 should be and are hereby struck out. 23. The Claimant s claim for damages for malicious prosecution remains to be determined before this Court, and the Court is therefore of the view that the information pleaded at paragraphs 9, 10 and 11 (as amended) and 18 (i) and 18 (ii) (as amended) are relevant to the issues that are to be determined by the Court. 24. The Court therefore orders as follows: a. The Claimant s claims for damages for assault, false arrest and false imprisonment be and are hereby struck out. b. The Claimant s claims for declarations are hereby struck out. c. Paragraphs 5, 7, 13, 14 and 17 and 18 (iii), (iv), (v) and (vi) of the Statement of Case be and are hereby struck out. d. The words the Claimant was falsely imprisoned for a period of about fifteen (15) hours at paragraph 8 line 2 be and are hereby struck out. Page 9 of 10

10 e. The words where he was falsely imprisoned for approximately ten (10) days at lines 4 to 5 of paragraph 11 of the Statement of Case be and are hereby struck out. f. The words falsely imprisoned and at paragraph 18 (ii) of the Statement of Case be and are hereby struck out. g. The Claimant is legally aided and there shall no order as to costs on the Notice of Application. FRANK SEEPERSAD JUDGE Page 10 of 10