IN THE HIGH COURT OF JUSTICE BETWEEN AND BEFORE THE HONOURABLE MADAM JUSTICE JUDITH JONES

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO CV IN THE HIGH COURT OF JUSTICE BETWEEN TERRENCE AND CHARLES Claimant CHIEF OF THE DEFENCE STAFF First Defendant THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Second Defendant BEFORE THE HONOURABLE MADAM JUSTICE JUDITH JONES Appearances: Ms. K. A. Mottley for the Claimant. Mr. R. Hector and Mr. E. Jones instructed by Mr. J. Forrester for the Defendants. Ruling 1. On 22 nd July 2014 the Claimant, Terrance Charles, filed a fixed date claim against the Chief of Defence Staff and the Attorney General seeking a declaration that his discharge from the Trinidad and Tobago Defence Force was contrary to the rules of natural justice in that his employment was terminated without him having a fair hearing. He also seeks declarations that his rights pursuant to sections 4 (b) and (d) and section 5(2)(e) and (h) of the Constitution had been infringed; damages for the breach of his constitutional rights, loss of earnings, loss of promotional opportunities, loss of employment opportunities, loss of reputation and mental and emotional distress. Page 1 of 16

2 2. On the fixed date claim are endorsed the words: Action: Constitutional motion/wrongful dismissal. Also filed at the same time was an affidavit of the Claimant in support of the claim. 3. By an application filed on 3 rd October 2014 the Defendants seek to have the Claimant s fixed date claim struck out pursuant to Part 26.1 (a)(b) and(c) of the Civil Proceedings Rules 1998 as amended ( the CPR ) as failing to comply with the rules; being an abuse of the process of the court and disclosing no grounds for bringing the claim. 4. Insofar as the Defendants contend that the action is an abuse of the process they submit that the claim does not identify whether it is a claim for an administrative order or claim for wrongful dismissal. If it is a claim for an administrative order then the Defendants submit that: (i) it does not comply with Part 56.7 (1) or (2); (ii) the Chief of Defence Staff is not a proper defendant to the claim; (iii) if a claim for relief under the Constitution then it has been made solely for the purpose of avoiding the appropriate judicial remedy for unlawful administrative action which involves no contravention of any human rights or fundamental freedom; and (iv) there were alternative remedies available to the Claimant under the Defence Act; Page 2 of 16

3 5. Insofar as the Defendants allege that the statement of case discloses no grounds for bringing the claim they submit that: (i) in alleging breaches of sections 4(b) and (d) of the Constitution the Claimant has failed to provide a single comparator. (ii) contrary to what was stated by the Claimant he was actually employed as a member of the Volunteer Defence Force as established and regulated by Part XI of the Defence Act; (iii) the Claimant has failed to show that he had been dismissed from the Defence Force Reserves rather his claim seems to be based on a denial of his request to be reinstated; (iv) in any event the Claimant has failed to show that he was validly enrolled as a member of the Volunteer Defence Force since he has not shown (a) that he signed the required form of attestation or (b) the period of time for which he was enrolled. Part 26.2(1)(a) 6. The Defendants submit that there has been a failure to comply with Part 56 of the CPR. In response to this submission the Claimant submits that this is a mixed claim and relies on the statements made by Jamadar J.A. in Antonio Webster v The Attorney General 1 with respect to the effect of Part 56.6(1) of the CPR and the conclusion contained therein that the mere existence of mixed claims, that is claims for administrative orders and civil remedies, in one action is not fatal to the action. 1 CA No 113 of Page 3 of 16

4 7. As I understand the submissions made on behalf of the Claimant it is that, while accepting that the facts in support of the claim are suggestive of a claim for an administrative order, the Claimant relies on Part 56.6 (1) of the CPR which allows a court in the circumstances to direct the manner in which the claim is to proceed. 8. From the facts relied on by the Claimant, the use of a fixed date claim and affidavit, the nature of the relief sought and the submissions made by the Claimant s Attorney it is clear that the intention of the Claimant is to make an application for an administrative order. It is obvious therefore that this is not a claim for wrongful dismissal as suggested by the endorsement on the Fixed Claim Form but rather a claim for relief under section 14 of the Constitution. The Claim ought properly therefore to comply with Part 56 of the CPR. 9. In accordance with Part 56 therefore the Claimant was required to have identified the nature of the application and, if seeking relief under section 14 of the Constitution, have identified the section and placed on the fixed claim form the words: Originating Motion. Insofar as this has not been done I am satisfied that the omission is a technicality that can, if necessary, be corrected by the appropriate order. The failure to comply with the relevant rule, in my opinion, is not on its own fatal to the claim but may in conjunction with other matters result in the striking out of the claim. Page 4 of 16

5 Parts 26.2 (1)(b) and (c) 10. The Defendants pray the aid of two rules both of which go to the substance of the action before the Court. I propose to deal with the submissions made by the Defendants under these two rules together. 11. A decision made by the Court under Part 26.2 (1)(c), that the statement of case discloses no grounds for bringing the claim, amounts to a decision on the merits of the case. The burden of proof in this regard is on the applicant. At the end of the day the Defendants, as applicants, must satisfy me that no further investigation will assist me in my task of arriving at the correct outcome. That said the rule ought not to be used except in the most clear of cases. Where an arguable case is presented or the case raises complex issues of fact or law its use is inappropriate In the instant case there is no statement of case nonetheless I am of the opinion that the intention of the rule, that is to prevent matters which clearly unarguable, a waste of judicial time and offend against the requirement of expedition and proportionality as contained in the overriding objective, is applicable in matters of this nature. In claims of this type however it may be that the appropriate order would be that the claim is in the circumstances an abuse of the process of the court. 13. Although now reflected in our rules at Part 26.2 (1)(b) the power to strike out proceedings as being an abuse of the process of the court is an inherent power which any court of justice must possess to prevent misuse of its procedure in a way 2 Zimmerman: On Civil Procedure, second edition, para 8.35 at page 280. Page 5 of 16

6 which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to parties in litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. 3 It comes into play in circumstances where the rules are silent. Its jurisdiction is open-ended and capable of being invoked in any situation Unlike the 1975 Supreme Court Rules the CPR does not prevent an applicant filing evidence in support of an application such as this. Although available to them the Defendants have chosen not to file affidavits to the facts presented by the Claimant. For the purpose of this application therefore the facts as presented by the Claimant in his affidavit in support of the Fixed Date Claim are unchallenged. In the absence of any contest to these facts I am required at this stage to proceed as though these facts are true. 15. The Claimant does however annex various documents created by or on behalf of the First Defendant. These documents include a letter dated 10 th of May 2013 from Major Berahazar Administrative Officer to the Chief Staff Officer Defence Force. Although this letter does not comprise sworn evidence in these proceedings it does purport to contain Berahazar s explanation to the Chief Staff Officer of the actions taken with respect to the Claimant and as such provides some insight into the positions taken by the Defence Force. 3 per Lord Diplock in Hunter v Chief Constable of West Midlands [1982]A.C. 529 at page Zimmerman at paragraph at page 473. Page 6 of 16

7 16. According to the Claimant he was enlisted in the Trinidad and Tobago Defence Force Reserves as a soldier in In 2008 he was promoted from Private to Lance Corporal. On 21 st September 2011 he was demoted without an enquiry or without being given reasons for his demotion. On the same day he wrote and delivered to Major Berahazar a letter of resignation. He was advised by Major Berahazar that representations would be made on his behalf to the Commanding Officer. Later that day he was informed by Major Berahazar that the Commanding Officer had given him his blessings and that he could go home and would be contacted. 17. By a published order dated 5 th October 2011 the Claimant was discharged from the Defence Force Reserves. The order exhibited confirms his discharge on the grounds that his service is no longer required. By another published order, this time dated 14 th October 2011, the Claimant was reverted to the rank of Private. The copy of the order exhibited advises that he reverted to the rank of Private with effect from 21 st September No information is given by the Claimant of the effect of this order on him. 18. However on the 17 th May 2012, by letter of the same date, the Claimant requested to be re-enlisted. By letters dated 25 th June 2012 and 18 th of July 2012 from Major Berahazar and the Commanding Officer of the Defence Force Reserves respectively the Claimant was informed that his request for re-enlistment was denied. However by an order dated 25 th September 2012 the order dated the 5 th of October 2011 insofar as it related to the Claimant's discharge was cancelled. This order Page 7 of 16

8 thereafter refers to the Claimant in the capacity of a Private and authorizes his posting from permanent staff to part-time staff with effect from 13 th October According to the Claimant on 13 th October 2012 he resumed duty on the part time weekend staff. Upon reporting for duty he was issued with his full kit but advised that the relevant officer was not aware of the fact that he was placed on the part time week-end staff. At his request he was allowed to see the Commanding Officer and enquired of him about his placement on the part time week-end staff. He says that he was told by the Commanding Officer that he was trying to help him and that he should take 2 weeks home and then return. 20. In accordance with those instructions he reported for duty on 10 th November On that date he was advised that he was discharged and that his service was no longer needed. His kit was seized and he was escorted off the compound. He subsequently obtained a copy of an order dated 18 th October 2012 which reflected that the order dated 25 th September 2012 insofar as it referred to him had been cancelled. 21. From the facts adduced it would seem that the Claimant alleges two violations of his rights by the Defence Force. The first is that he was demoted on 27 th September 2011 without an enquiry and without any reasons being given for his demotion. The second is that, after plethora of orders, while serving as a private part time he was on the 10 th November 2012 discharged from the Defence Force for no apparent reason and without being heard in this regard. Both of these violations Page 8 of 16

9 concern the failure by the Defence Force to comply with the provisions of natural justice. 22. Insofar as the proceedings disclose any rationale by the Defence Force for the positions taken by them it is to be found in the letter dated 10 th May According to the letter the Claimant appeared before his commanding officers on 21 st September 2011 on 6 charges and was found guilty on 5. He was then demoted to the rank of private. He tendered his resignation which resignation was accepted by his commanding officer. Seven months afterwards he requested to be reinstated. After denying this request his commanding officer agreed to reinstate him on the part time staff. Accordingly his discharge was cancelled by order dated 25 th September 2012 but he was not informed of the publication officially. 23. Despite this he reported for duty on 13 th November 2012 and was informed that his posting would be on the part time staff. He thereafter expressed his dissatisfaction with the appointment and stated that this was not what he wanted. He was then advised by the Commanding Officer that he was unable to assist. Accordingly the Commanding Officer ordered the cancellation of the order appointing the Claimant to the part-time staff. 24. It would seem to me that the mere existence of these orders provide some validity to the Claimant s case. There is nothing to suggest that these orders are in any way fraudulent. Indeed Berahazar refers to all but one of the orders. Page 9 of 16

10 25. There were four orders issued by the Defence Force Reserves with reference to the Claimant. The first order purported to discharge the Claimant from service. The second order purported to revert him to the rank of private retroactively. The third order then purported to cancel the order discharging him from duty and retroactively post him to the part time staff. Finally the fourth order purported to cancel the third order. 26. With due respect to the First Defendant, perhaps because of the failure of the First Defendant to place any evidence before me to assist with, explain or justify the procedure adopted by the Defence Force, the orders issued seem to be a mass of confusion. Even in the light of the explanation given to the Commander of the Defence Force by Major Berahazar it is extremely difficult for me to comprehend how the organization can be efficiently run in this manner. 27. While the order of the 5 th October 2011 could be read to suggest that his resignation was accepted that interpretation does not accord with the order of the 14 th October It is instructive that in providing his explanation Berahazar makes no mention of the order of the 14 th October At the end of the day it would seem to me that an examination of the orders issued reveal that there is no order cancelling that of the 14 th October 2011 the effect of which was to revert the Claimant from a Lance Corporal to a Private. Neither does the final order of dismissal, 18 th October 2012, give any reason for the dismissal of Claimant. Page 10 of 16

11 29. In this regard therefore on the evidence before me it would seem that the Claimant has an arguable case. The question here is whether the claim as brought and filed under these circumstances is maintainable. 30. With respect to the nature of the Claimant s employment with the Defence Force the Defendants submit that (i) contrary to his claim to be a member of the Defence Force Reserves the Claimant was at the time actually employed as a member of the Volunteer Defence Force as established and regulated by Part XI of the Defence Act Chap ( the Act ) and (ii) in any event the Claimant has failed to show that he was validly enrolled as a member of the Volunteer Defence Force since he has not shown (a) that he signed the required form of attestation or (b) the period of time for which he was enrolled. 31. Both of these points are in my view not sustainable. With respect to (i) the Defendants have placed no contrary evidence before me. Reference was made to the fact that all the orders are referred to as Part 11 orders. Part X of the Act deals with Reserves. Part XI deals with the Volunteer Defence Force. It may very well be that the reference to Part 11 is in fact a reference to Part XI. The problem is that all the orders produced are also headed Trinidad and Tobago Defence Force Reserves. As well the letter of the 10 th May written by Berahazar refers to the Claimant as a former reserve. In any event the Defendants have not identified how that fact would adversely affect the claim made. Page 11 of 16

12 32. Even more of a non-point is the submission at (ii) since all the orders of the Defence Force produced by the Claimant could only have properly been made on the basis of his valid enrollment as a member. 33. With respect to the defendants before the Court I accept the Defendants submission that if this is an action for relief under the Constitution, as I find it is, then the Chief of Defence Force is not a proper defendant to the action. With due respect to the Claimant the case of Carmel Smith has absolutely no relevance to the facts of this case. The Defence Force is not a public authority in the context of the statement of Lord Diplock in Thornhill v the Attorney-General The Defendants submit that the Claimant has failed to provide any evidence in support of the reliefs sought at paragraphs (b) to (g) of the relief claimed. By these reliefs the Claimant seeks declarations that the termination was contrary to sections 4(b) and (d) and 5(2)(e) and (h) of the Constitution. 35. Sections 4(b) and (d) of the Constitution confirm the individual s right to equality before the law and the protection of the law 6 ; and the right to equality of treatment from a public authority in the exercise of any of its functions 7. On the facts presented by the Claimant it is clear that no case has been made out with respect to breaches of section 4 (b) and (d) insofar as those sections deal with equal treatment. The Claimant has not provided any facts which suggest inequality before the law or unequal treatment by a public authority. To get to first base with respect to any 5 Civil App No. 29 of Section 4 (b) of the Constitution. 7 Section 4(d) of the Constitution. Page 12 of 16

13 alleged inequality the Claimant would have to show that he was treated differently to other similarly circumstanced persons. 8 The Claimant has failed to do so. 36. What the Defendants have failed to address however is the fact that in accordance with the facts as alleged the Claimant also seeks a declaration that his discharge constitutes a breach of his rights in accordance with the rules of natural justice and the fact that sections 4 (b) and sections 5(2)(e) and (h) all have components which address the requirement of complying with the rules of natural or fundamental justice. 37. The provisions of section 4(b) of the Constitution insofar as it deals with the protection of the law and Section 5(2)(e) insofar as it provides that Parliament may not deprive a person of the right to a hearing in accordance with the principles of fundamental justice have been interpreted to mean and entrench the right of the individual to procedural fairness 9. This right includes the right to a fair hearing. It would seem to me that in these circumstances the facts as adduced by the Claimant support his contention that his constitutional right to procedural fairness as enshrined by sections 4(b) and sections 5(2)(e) has been infringed. 38. The real strength of the Defendants submissions however lie in the submissions which go directly to the question of abuse of process namely that: (i) it is clear that the claim for relief under the Constitution has been made for the sole purpose of avoiding the 8 Mohanlal Bhagwandeen v the Attorney-General of Trinidad and Tobago PC Appeal No 45 of 2003; Dennis Graham v Police Service Commission and the Attorney General of Trinidad and Tobago CA 143 of 2006 and CA 8 of Rees v Crane [1994] 2 AC 188 Page 13 of 16

14 appropriate judicial remedy for unlawful administrative action which involves no contravention of any human rights or fundamental freedom. In this regard the Defendants rely on judicial pronouncements made in a number of cases. These principles are not in dispute; and (ii) there were alternative remedies available to the Claimant under the Act; and Before actively considering the abuse of process point it is necessary to return to the facts of the case to provide a context to any submission with respect to the abuse of the process of the court. Although not specifically stated by the Claimant from the facts adduced by him it is clear that after he tendered his resignation on the 21 st September 2011 and was told that it was accepted the Claimant did not return to work until the 13 th October On the date he reported for duty but did not work and was sent back home for two weeks. On his return on the 10 th November 2012 he was, according to him, unceremoniously discharged. The Claimant therefore has not actually worked with the Defence Force Reserves since tendering his resignation of the 21 st September During that period the Claimant s first approach to the Defence Force was by letter dated 17 th May 2012, almost eight months from his resignation, when he sought reinstatement. Two things are therefore clear on the facts raised by the Claimant. The first is that at no time during the period September 2011 to November 2012 did the Claimant challenge his demotion. Secondly at all material times the Claimant operated under the impression that he had validly resigned from the Defence Force Reserves. At all material times he was requesting a re-instatement. Page 14 of 16

15 40. On the facts of this case I am satisfied that there was a remedy available to the Claimant under the Act to challenge both the decisions, the decision to demote him without a hearing in September 2011 and to unceremoniously discharge him in November 2012, now being attacked by him. On the facts as presented I am satisfied that the redress provided by section 195 of the Act, to make complaint to his commanding officer and/or the Council 10, was available to the Claimant. I am also satisfied that, was that option not open to him, he could have sought judicial review of both decisions. With respect to the first decision the Claimant chose not to challenge the decision but rather accept it and rather resign. Everything that follows thereafter stems from his decision to resign. 41. The fact that there were other remedies open to the Claimant is not however, in my view, necessarily determinative of the question of abuse of process. While I am satisfied that the mere fact that there were other remedies available can of itself amount to an abuse of the process of the Court to my mind the real abuse here are the positions taken by the Claimant as disclosed by the facts of this case. 42. In my opinion it is an abuse of the process of the Court to not challenge a decision; accept it by resigning, seek reinstatement made necessary solely by choosing to resign and then almost three years afterwards employ the Constitution as a means to challenge that decision. That to my mind is the real abuse of the process of the Court. The Claimant cannot blow hot and cold and to use the Constitution to facilitate this behaviour. This is in my opinion inappropriate and impermissible. 10 established under section 7 of the Act. Page 15 of 16

16 43. In the circumstances therefore although I am of the view that there are procedural irregularities in the claim presented I am satisfied that these irregularities can be cured. In my opinion however, despite the glaring administrative faux pas made by the Defence Force, given the conduct of the Claimant to allow this claim to go forward would be manifestly unfair to them and would bring the administration of justice into disrepute among right-thinking people. 44. In the circumstances the claim is dismissed as being an abuse of the process of the Court. Dated this 4 th day of December, Judith Jones Judge Page 16 of 16