IN THE HIGH COURT OF JUSTICE BETWEEN AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO FIRST NAMED DEFENDANT AND AND

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1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV BETWEEN RICKY PANDOHEE CLAIMANT AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO FIRST NAMED DEFENDANT AND THE PRESIDENT, GENERAL SECRETARY, FINANCE OFFICER, TRUSTEES AND MEMBERS OF THE PRISON OFFICERS ASSOCIATION OF TRINIDAD AND TOBAGO (SECOND DIVISION) AND SECOND NAME DEFENDANT PUBLIC SERVICE COMMISSION INTERESTED PARTY Before the Honourable Madame Justice Margaret Y. Mohammed Dated the 17 th March 2017 APPEARANCES: The Claimant not appearing and being unrepresented. Ms. Corine Findley and Ms. Theophilus instructed by Ms. Laura Persad Attorneys at law for the First Defendant. Mr. Anthony Bullock Attorney-at-Law for the Second Defendant. Ms. Kelisha Bello Attorney-at-Law for the Interested Party. Page 1 of 13

2 REASONS 1. On the 13 th December 2016 ( the order ) I struck out the Claimant s claim against the First Named Defendant and I ordered the Claimant to pay the First Named Defendant s costs to be assessed in default of agreement. I now set out my full reasons for making the order. 2. The Claimant was enlisted in the Trinidad and Tobago Prison Service and appointed a Prison Officer I on the 2 nd August Sometime between 1995 and 2014 the Claimant acquired his Legal Education Certificate. On the 1 st July 2015 the Second Named Defendant agreed to appoint and retain the Claimant as its full time legal officer. By letter dated the 30 th October 2015 the Second Named Defendant terminated the Claimant from his position as its legal officer but the Claimant was only served with the letter on the 21 st December On the 7 th December 2015 the Claimant applied to the Commissioner of Prisons ( the Commissioner ) for all his vacation leave of 140 days but at the time of the institution of the instant he was not receipt of a response. 3. By letter dated the 18 th January 2016 the Claimant wrote a pre-action protocol letter to the Commissioner and copied to the Minister of Labour, the Chairperson of the Interested Party and the Registrar General. 4. On the 28 th January 2016 ( the DPA letter ) the Director of Personnel Administration ( the DPA ) responded to the aforesaid pre-action protocol letter which was addressed to the Commissioner. The DPA letter stated that the Commissioner had informed the DPA that the Claimant had been absent without official leave since the 1 st October 2015 and that the Commissioner had Page 2 of 13

3 recommended that the Claimant be declared to have resigned his posts in accordance with regulation 49 of the Public Service Commission Regulations. The DPA also indicated to the Claimant that the payment of salary and allowances do not fall under the purview of the Service Commissions Department and that such matters should be addressed to the Commissioner and/or the Minister of National Security. 5. At paragraph 3 of the Statement of Case the Claimant averred that the First Defendant is sued pursuant to the State Liability and Proceedings Act Chapter 8:02 since it is liable for acts and/or omissions by the servants and or agents of the State including the Ministry of National Security and the Commissioner. At paragraph 4 of the Statement of Case he averred that the Second Named Defendant is the recognised Association to represent Prison Officers and Prison Service Drivers under the Prison Service Act Chapter 13:02. The Claimant did not set out the basis for joining the Interested Party. 6. In paragraphs 13 to 18, paragraphs 23 to 25 and paragraphs 39 to 45 of the Statement of Case the Claimant alleged breaches of his expressed and implied terms of his contract of employment by the First Named Defendant. The Claimant also alleged constructive dismissal by the First Named Defendant at paragraphs 46 to 49 of the Statement of Case. 7. In particular at paragraph 26 of the Statement of Case the Claimant alleged that it was an implied duty of his contract of employment between the Claimant and First Named Defendant for the latter to pay him. At paragraph 44 of the Statement of Case, the Claimant alleged that in breach of the First Named Defendant s duty to act in accordance with section 14 of the Prison Services Act and rules 5 and 20 of Page 3 of 13

4 the Prison Services Regulations and rule 110(1) of the Public Service Commission Regulations the First Named Defendant stopped paying the Claimant his salary and has imposed a penalty not contained in the Prison Services Act or Prison Service Regulations. At paragraph 42 the Claimant alleged that the First Named Defendant breached its duty to pay the Claimant as an employee his salary and allowances for December 2015, January 2016, February 2016 and March The Claimant also alleged at paragraph 41 of the Statement of Case that in breach of the First Named Defendant s duty to act in good faith towards the Claimant as an employee, the Commissioner failed to acknowledge that the Claimant was seconded to the Second Defendant at least until 30 th October 2015 and as such he could not have been deemed to be absent without leave since October At paragraph 43 of the Statement of Case the Claimant alleged that the First Named Defendant s agent, the Commissioner declared the Claimant absent without leave since 1 st October 2015 and recommended and/or caused the Interested Party to commence absent without leave proceedings against him purportedly inn accordance with regulation 49 of the Public Service Commission Regulations. 9. The Claimant alleged at paragraph 37 of the Statement of Case, that at the time of the institution of the instant claim no disciplinary proceedings were commenced against him and it has not been declared that he has been absent without leave. 10. At paragraph 45 of the Statement of Case the Claimant alleged that The actions of the First Named Defendant is procedurally incorrect and the decision is unlawful, unreasonable, breach of natural justice and entitles the Claimant to apply for Judicial Review. Page 4 of 13

5 11. The substantive relief which the Claimant was seeking in his Claim Form filed on the 29 th April 2016 against the First Named Defendant were: I. A Declaration that the conduct of the First Named Defendant through his servants and /or agents made in December 2015 to stop payments of the Claimant s salary and allowances is a breach of the Claimant s contract with the First Named Defendant and a breach of the Public Service Regulations. II. A Declaration that the conduct of the First Named Defendant through his servants and/or agents made in December 2015 to stop payments of the Claimants salary and allowances and failure of the First Defendant to inform him of the initiation of proceedings under section 49 of the Public Service Commission Regulations against him and to act in accordance with the implied and express terms of contract and the Public Service Act and the Public Service Regulations, the Prison Service Act and Regulations amounts to a repudiatory breach of contract entitling the Claimant to deem his contract with the First Defendant terminated. III. Damages for constructive dismissal from such office or post on and from the 30 th day of October, IV. Special damages for salary and allowances for the period December 2015 to March 2016 and continuing. V. An Order for the First Named Defendant to effect payment of all entitlements and emoluments with retroactive effect as an employee of the First Named Defendant. VI. Exemplary Damages for the harsh and oppressive conduct of the First Named Defendant in breaching the terms of the Claimant s employment. VII. Interest pursuant to Section 25 (1) of the Supreme Court of Judicature Act, Chapter 4:01. VIII. Costs. Page 5 of 13

6 IX. Such further or other relief as the Honourable Court may deem just and/or expedient. 12. The reliefs which the Claimant is seeking against the Second Named Defendant are: X. A Declaration that the conduct of the Second Named Defendant through his servants and/or agents made in December 2015 to stop payments of the Claimant s allowances is void and a breach of the Claimant s contract with the Second Named Defendant; XI. A Declaration that the Claimant was at material times a member of the Second Named Defendant and entitled to the rights and privileges of membership of the Second Named Defendant; XII. A Declaration that the conduct of the Second Named Defendant through his servants and/or agents made in December 2015 to exclude the Claimant from the premises of the Second Named Defendant and in preventing him from exercising the rights and privileges of membership is void; XIII. Damages for wrongful dismissal as Legal Officer of the Second Named Defendant on and from the 30 th day of October, 2015 and for conspiracy and for inducing a breach of contract by the First Named Defendant; XIV. An injunction restraining the Second Named Defendant through its servants and/or agents from excluding the Claimant from the Second Defendant s premises or preventing him from exercising the rights and privileges of membership; Page 6 of 13

7 XV. An Order for the First Named Defendant to effect payment of all entitlements and emoluments with retroactive effect; XVI. Special damages for allowances for the months August 2015 and September 2015 and the period December 2015 to March 2016 and continuing; XVII. Exemplary Damages for the harsh and oppressive conduct of the Second Named Defendant in breaching the terms of Claimant s contract and unlawful exclusion; XVIII. Interest pursuant to Section 25 (1) of the Supreme Court of Judicature Act, Chapter 4:01; XIX. XX. Cost; Such further or other relief as the Honourable Court may deem just and/or expedient. 13. On the 28 th July 2016 the First Named Defendant filed an application ( the application ) seeking to strike out the Claimant s Claim Form and Statement of Case pursuant to Part 26.2(1)(c) of the Civil Proceedings Rules 1998, as amended ( the CPR ) on the basis that the Statement of Case disclosed no grounds for bringing a claim against the First Named Defendant. It also asked that the Claimant s Claim Form and Statement of Case be struck out pursuant to Part 26.2(1)(b) of the CPR as it constituted an abuse of the process; or in the alternative, that the First Named Defendant be granted an extension of time for filing its Defence pending the hearing and determination of the application and that the Claimant do pay to the First Named Defendant the costs of this application, to be assessed in default of agreement. Page 7 of 13

8 14. The grounds of the application were: i. The First Named Defendant is not the employer of the Claimant and there exists no contract of employment between the First Named Defendant its servant/agents and the Claimant. ii. The alleged decision of the Commissioner and/or the Interested Party naturally involve public law issues which the Claimant has not challenged. iii. Complaints of breach of the rights of natural justice are properly brought in the context of judicial review proceedings and not tort proceedings; and iv. The remedies sought cannot be obtained against the First Named Defendant as the alleged decision of the Commissioner and/or the Interested Party has not been set aside. v. There is therefore no cause of action disclosed on the pleadings as the Claimant has no viable claim for breach of contract given these circumstances. vi. The Claimant s claim is therefore misconceived as it ought to have been brought as a judicial review and not as an action for breach of an employment contract. This course of action is an abuse of the process of the Court, as a result of which these proceedings must be dismissed. vii. There are no grounds for defending this claim as the Claimant on his own pleading has abandoned his work. 15. In support of the application Counsel for the First Named Defendant submitted that the claim as pleaded by the Claimant contains allegations against the Second Named Defendant and the Interested Party. However, there is no nexus between the First Named Defendant and the Claimant since the latter has not pleaded that the First Named Defendant is responsible for the actions of the Commissioner Further the relief which the Claimant is seeking against the First Named Page 8 of 13

9 Defendant is he is challenging decisions of the Commissioner and the Interested Party. There has been no abandonment proceedings brought by the Interested Party against the Claimant. Even if the Claimant had been declared to have abandoned his job, abandonment is not a dismissal or termination therefore there is no cause of action for dismissal or wrongful termination. The declarations which the Claimant seeks against the First Named Defendant concern public law issues and such relief are not appropriate in private law. 16. The hearing of the application was scheduled for 10:45 am but when the matter was called at 11:01 am Counsel for the Claimant was not present and there was no explanation for his absence. He appeared later in the day after I had made the order. 17. The Court s power to strike out a statement of case is set out in Part 26.2 (1) of the CPR which states: 1. The court may strike out a statement of case or part of a statement of case if it appears to the court: a. that there has been a failure to comply with a rule, practice direction or with an order or direction given by the court in the proceedings; b. that the statement of case or the part to be struck out is an abuse of the process of the court; c. that the statement of case or the part to be struck out discloses no grounds for bringing or defending a claim; or d. that the statement of case or the part to be struck out is prolix or does not comply with the requirements of Part 8 or 10. Page 9 of 13

10 18. Abdulai Contej C.J. in Belize Telemedia Limited v Magistrate Usher 1 considered the interaction between striking out under the court s case management powers under Part 26 as: 15. An objective of litigation is the resolution of disputes by the courts through trial and admissible evidence. Rules of Court control the process. These provide for pre-trial and trial itself. The rules therefore provide that where a party advances a groundless claim or defence or no defence it would be pointless and wasteful to put the particular case through such processes, since the outcome is a foregone conclusion. 16. An appropriate response in such a case is to move to strike out the groundless claim or defence at the outset. 17. Part 26 of the powers of the Court at cases management contains provisions for just such an eventuality. The case management powers conferred upon the Court are meant to ensure the orderly and proper disposal of cases. These in my view, are central to the efficient administration of civil justice in consonance with the overriding objective of the Rules to deal with cases justly as provided in Part 1.1 and Part 25 on the objective of case management. 19. I decided to strike out the Claimants action against the First Named Defendant for the following reasons. 20. Firstly, there was no cause of action for breach of contract by the First Named Defendant as disclosed in the pleadings. The Claimant pleaded that the First Named Defendant was the Claimant s employer. According to paragraph 1 of the Statement of Case the Claimant was permanently employed as a Prison Officer in the Trinidad and Tobago Prison Service. Section 3 of the Prison Services Act sets 1 (2008) 75 WIR 138 Page 10 of 13

11 out the structure of the Prison Service and Section 7 of the Prison Service Act sets out the terms and conditions of employment for Prison Officers. In essence, there was no provision which stated that the First Named Defendant was the Claimant s employer. 21. Secondly, the Claimant s complaints appeared to be against certain decisions by the Commissioner and his cause of action if any was in public law and not tort proceedings in private law. On the face of the averments in the Statement of Case, it appeared to me that the Claimant s complaints were against certain decisions of the Commissioner and the Second Named Defendant. The Claimant s complaints against the Commissioner were the Commissioner s failure to respond to his request for 140 days vacation leave which the Claimant made on the 7 th December 2015; the Commissioner s decision to inform the DPA that the Claimant had been absent without official leave since the 1 st October 2015; the Commissioner s recommendation that the Claimant be declared to have resigned his post in accordance with regulation 49 of the Public Service Commission Regulation; the Commissioner s failure to recognised his alleged secondment to the Second Named Defendant and the Commissioner s decision to cease payment of the Claimant s salary since December The Claimant complaints against the Second Named Defendant were related to the latter s decision to terminate him from the post of Legal Officer. 23. In my opinion, if the Claimant was not satisfied with the decisions of the Commissioner the more appropriate course would have been to seek relief in the public law and not private law. Indeed at paragraph 45 of the Statement of Case, referred to aforesaid, the Claimant recognised even before he filed the instant action Page 11 of 13

12 that his remedies were in judicial review proceedings since his complaints were against decisions of the Commissioner and the nature of his complaints concerned the procedural correctness of the said decisions. 24. In any event, the relief sought by the Claimant against the First Named Defendant cannot be obtained since any alleged decisions against the Commissioner and/or the Interested Party have not been set aside. 25. Thirdly, even if there was a nexus between the Claimant s complaint against the Commissioner and the First Named Defendant, the Claimant admitted at paragraph 37 of the Statement of Case that no disciplinary proceedings had been commenced against him by the First Named Defendant and he has not been declared absent without leave. Yet at paragraph 69 of the Statement of Case he pleaded that the abandonment proceedings by the First Named Defendant was procedurally irregular, ultra vires, unreasonable and in breach of the rules of natural justice. 26. In Brian Bisnath v the Attorney General of Trinidad and Tobago 2 the claimant was a police officer who brought an action in private law for breach of contract and wrongful dismissal since the Commissioner of Police had declared that the said claimant had abandoned his post. Boodoosingh J in striking out the claim was of the view that the claimant s cause of action was not based on a contractual relationship between the parties but on the administrative act of the Commissioner of Police in declaring that the claimant had abandoned his office. 2 CV Page 12 of 13

13 27. There was no pleading that a decision was made by the First Named Defendant to declare that the Claimant had abandoned his office. The proper body to convene those proceedings against the Claimant was the Interested Party and there was no pleading that this process had been invoked. In this regard, any complaint by the Claimant with respect to the recommendation by the Commissioner to the DPA appeared to be premature and an abuse of process. 28. Lastly, the Court had the power to convert an ordinary claim to continue as one for an administrative order under Part 56.6 of the CPR or section 13 of the Judicial Review Act Chapter 7:08. Part 56.6 (1) provides: This rule applies where a claimant issues a claim for damages or other relief other than an administrative order but where the facts supporting such claim are such that the only or main relief is an administrative order. 29. I did not think it was appropriate to do so in the instant case since the Claimant intentionally abused the process of the Court by filing the instant proceedings. He acknowledged at paragraph 45 of the Statement of Case that his remedy was in judicial review proceedings; he acknowledged at paragraph 37 of the Statement of Case that no disciplinary proceedings had been commenced against him and he has not been declared absent without leave; and at paragraph 17 of the Statement of Case he acknowledged that it was the Interested Party which is bestowed with the power to declare an officer absent from duty under regulation 49 of the Public Service Commission Regulations.... Margaret Y Mohammed Judge Page 13 of 13

IN THE HIGH COURT OF JUSTICE

REPUBLIC OF TRINIDAD AND TOBAGO CV 2017-01240 IN THE HIGH COURT OF JUSTICE IN THE MATTER OF THE JUDICIAL REVIEW ACT NO 60 OF 2000 AND IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW