Blake All E.R v Barker

• Jurisdiction: Guyana
• Judge: Bishop, J.A.,Kennard, J.A.
• Judgment Date: 26 November 1992
• Neutral Citation: GY 1992 CA 13
• Docket Number: Civil Appeals Nos. 60 & 61 of 1986
• Court: Court of Appeal (Guyana)
• Date: 26 November 1992

Court of Appeal

Kennard, J.A.; Bishop, J.A.; Churaman, J.A.

Civil Appeals Nos. 60 & 61 of 1986

Blake All E.R.

and

Barker

Appearances:

B.E. Gibson for appellants

G. Abrams, Principal Legal Adviser and Mrs. Monica Van Sertima, Senior Legal Adviser for the respondent.

Statute - Interpretation — Police Act, Cap. 16:01, s.35 (1) — Treatment of laws existing at time Constitution came into force — Constitution of Guyana s. &(4) — Whether applicant police officers unconstitutionally discharged from the police force as a result of misinterpretation of s.35 (1) by Commissioner of Police.

Bishop, J.A.

1 It has always been a useful and, sometimes, both an enriching and rewarding exercise for counsel, appearing on behalf of an appellant and confronted with the hallowed doctrine of stare decisis and its stringent rules, to pursue his formidable task of seeking to establish that a decision, previously given by an appellate court, ought not to be regarded any longer as binding precedent, because the judgment was one arrived at per incuriam. This appeal marked such an occasion and we should commend the efforts of Mr. Gibson to have us concur, if we can, in his several propositions. He argued against the rationes decidendi of the majority judgment of this court in Lloyd Barker All E.R. v. Eric Douglas, Civil Appeal, Library Reference No. 5/1986, unpublished, delivered by Fung-a-Fatt and Kennard, JJ.A. (but Harper, J.A., dissenting). It was a majority decision by which the learned trial judge felt himself bound, in the present litigation affecting the appellants here.

2 The principal point for determination then, as indeed now, required a pronouncement on the true construction to be placed on section 35(1) of the Police Act, Chapter 16:01. This section was promulgated in 1957 under Police Ordinance, No. 39 of 1957. And, because it is my view that the whole of section 35 should be set out, if the significance of section 35(1) is to be grasped, I cite the section fully:

• “35(1) The commissioner may at any time discharge any subordinate officer or constable from the force on the ground that, having regard to the conditions of the force, the usefulness of the subordinate officer or constable thereto and any other relevant circumstance, such discharge is desirable in the public interest:

• Provided that any subordinate officer or constable discharged under section 32 of this section may be granted a pension, gratuity or other allowance with accrued to him by virtue of any Act relating to pensions then in force save that the amount so awarded shall not exceed the amount for which a public officer would be eligible if he retires from the public service in the circumstances described in section 8(d) of the Pensions Act.

• (2) Where any person is discharged from the force in pursuance of section 31, section 32 or subsection (1) of this section, he may within a period of fourteen (14) days from the date of his discharge, appeal to the Police Service Commission against such discharge, in a manner prescribed by regulations.

• (3) Where the Police Service Commission allows an appeal, the subordinate officer or constable shall be reinstated. In the Force and shall for all purposes be regarded as if he had not been discharged from the force”.

3 In the Eric Douglas case, heard at first instance by the Honourable Mr. Kenneth George, Chief Justice, the plaintiff had served 31 years in the Guyana Police Force. He was holding the rank of sergeant, when he was discharged by virtue of section 35(1) of the Police Act. The letter to him was dated July 19th 1978 and the Certificate of Character on Discharge indicated that his conduct and character during embodiment had been “unsatisfactory.”

4 It transpired that towards the end of 1976, when he was the NCO in charge of a police station in the interior of this country, he and a constable were charged with the offences of rape and attempted rape of two women. He was suspended from duty, and upon his arraignment the jury disagreed on the counts against him, while the constable was convicted of attempted rape and sentenced to three years' imprisonment. That was in 1978. In due course, a nolle prasequi was entered, in Douglas' favour, on June 9th 1978 but he was not permitted to resume duty: his formal appeal to the Police Service Commission was disallowed, and has subsequent application to the Honourable Minister of Home Affairs for a review of his discharge was unsuccessful. It was then May, 1981. Soon after, the plaintiff commenced proceedings in the High court where he sought:

• (a) a declaration that his discharge was wrongful and contrary to law;

• (b) a declaration that he [was] entitled to be a member of the Guyana Police Force until December 29 ^th 1981.

5 He had celebrated his 53 ^rd birthday and, all things being in order, would have retired on his 55th birthday, on December 30 ^th 1981.

6 The traverse filed by the defendants was that:

• (a) In discharging the plaintiff, the Commissioner of Police was acting in the exercise of the discretion reposed in him by virtue of section 35 of the Police Act, Chapter 16:01; and

• (b) the Police Service Commission was acting in exercise of the jurisdiction and powers conferred upon it by article 108 of the 1970 Constitution (now article 212 of the 1980 Constitution).

7 But George, C.J. ruled in favour of the plaintiff. The learned judge traced the history of section 35 and said at p. 30 of his judgment:

“The Constitution is the organic law and any law in conflict with it is pro tanto ultra vires (see article 2 of the 1970 Constitution). Therefore although section 35 vests in the Commissioner the power to remove, the word used [being] discharge, that power, whatever may have been its scope at the time of enactment, can now only be exercised, if at all, in conformity with article 108(3) of the Constitution. In my opinion, therefore, in the exercise of his powers under s.35 of the Act, the Commissioner can only act for cause. As I have already noted, in so acting he is required to conform to the principles of natural justice by informing the officer concerned of his intention and of the grounds on which he proposes to act, and affording him reasonable opportunity to respond. In the present case no such procedure was adopted. Therefore, the principles of fundamental justice having been denied the plaintiff, he would be entitled to a declaration that his discharge was null and void.”

8 For the sake of completeness, I recite article 108(3) of the 1970 Republican Constitution (now Article 212(3) of the present Constitution, 1980 which reads:

“The power to make appointments to any offices in the police force below the rank of Inspector, the power to exercise disciplinary control, over persons holding or acting in such offices and power to remove such persons from office shall vest in the Commissioner of Police.”

9 The Guyana Court of Appeal by 2:1 disagreed with the reasoning of the Honourable Chief Justice and reversed his order that the plaintiff's dismissal was null and void, and that he was entitled to damages in the sum of $11,541.00 with costs to be taxed. However, Justices Fung-a-Fatt and Harper specifically concurred in the view of the Chief Justice that discharge by the Commissioner, under section 35(1) could be only for cause, a determination in which I myself concur. All three members of the Court of Appeal thought that section 35(1)) did not conflict with article 108(3), but they did not set out or develop reasons for reaching that conclusion. Justices Fung-a-Fatt and Kennard seemed to rely on Ryder v. Foley [1906] 4 C.L.R. 422, but neither discussed the facts nor the reasoning put forward by the court that delivered that judgment. However, my two brothers seem to have understood the Australian court to hold that the power given to the Commissioner of Police, by virtue of section 6 of the Police Act, 1863, was additional to that given to the Crown under the Constitution. And, surprisingly, although Kennard, J.A. appreciated that Ryder v. Foley was distinguishable from Kanda v. The Government of the Federation of Malaya [1962] A.C. 322, a later case which involved a conflict between the Constitution and the existing law, and it was held that the Constitution must prevail. His Honour felt content merely to observe that the cases had produced contrasting results. In the circumstances and with the utmost respect for my brethren, I do not feel constrained, except to the limited extent indicated, to abide by the bare opinions thus expressed or the conclusions they reached relative to section 35(1). Presently I hope to justify my stance. To those two cases I will return, in due course, with a view to examining what truly they decided.

10 Harper, J.A., in the closing stages of his judgment seemed concerned about certain omissions in the pleadings of the appellant [Commissioner] and in the evidence tendered on his behalf, in support of the discharge for cause. His Honour therefore questioned the Commissioner's bona fides. At pp. 23-24 His Honour observed:

“As the evidence stood no such evidence was led, and no pleading in the defence set out the basis for the Commissioner's decision. Surely in view of the allegation of bad faith and the discharge of the respondent [so] quickly after the nolle prosequi was entered in the criminal cause against him, it was necessary for some sort of evidence to be given or some averment made in the pleadings to show clearly that the Commissioner exercised his discretion from facts which came to hand before the discharge, and not because of the manner in which the criminal case against the respondent ended.”

11 At p. 22 of his judgment, His Honour assessed these defects in the pleadings and in the evidence to have been ‘fatal’ and decided in favour of Douglas.

12 Without more ado, I am prepared to treat the relationship of section 35 to...