Brandt v The Attorney General and Austin

• Jurisdiction: Guyana
• Judge: Luckhoo, C.,Bollers, C.J.,Persaud, J.A.,Cummings, J.A.,Crane, J.A.
• Judgment Date: 08 March 1971
• Neutral Citation: GY 1971 CA 2
• Date: 08 March 1971
• Court: Court of Appeal (Guyana)
• Docket Number: Civil Appeal No. 3 of 1971

Court of Appeal

Luckhoo, C.; Bollers, C.J.; Persaud, J.A.; Cummings, J.A.; Crane, J.A.

Civil Appeal No. 3 of 1971

Brandt

and

The Attorney General and Austin

Appearances

J.O.F. Haynes, S.C., Dr. F.H.W. Ramsahoye, S.C., associated with Doodnauth Singh, for plaintiff

Dr. M. Shahabuddeen, S.C., associated with R. Bissessar, for defendants.

Constitutional Law - Extradition Order — Validity

Luckhoo, C.

1 Prior to the making of an Order of Expulsion by the President of Guyana on the 3 ^rd December, 1970, under the Expulsion of Undesirables Ordinance, Cap. 99, the appellant, Rolf Brandt, an alien national, of the Federal Republic of Germany, was at all material times lawfully resident in Guyana. He was allowed to visit this country on divers occasions for some 17 (seventeen) months prior to the 16th January, 1970. It was on that date that the Permanent Secretary of the Ministry of Home Affairs informed him as follows: “I am to refer to your letter of December 1969 to inform you that approval has been given for you to remain in Guyana as Manager of Messrs. Robert Alke & Company. Please call at the Immigration Department to have the necessary entry made in your passport.”

2 In consequence of this, as from then he became employed with the said Company taking up residence with his wife and two children in the city of Georgetown, and his employment still subsists.

3 On the 15th October, 1970. Assistant Superintendent of Police Sancho orally requested him to leave Guyana by the end of October 1970. This led him to consult his solicitors, Messrs. Clarke and Martin. Following upon representations the Permanent Secretary to the Ministry of Home Affairs, by letter dated 14th November, 1970, informed his solicitors that the Minister was satisfied that his continued presence in Guyana was undesirable and that unless he left Guyana by the 30th November, 1970, a formal expulsion order would be made It him. No reasons wore, however, given as to why it was thought or considered that his continued presence in Guyana was undesirable. As he did not leave Guyana on that date, an Order of Expulsion was made on the 3rd. December, 1970 by the President of Guyana. That Order reads thus:

“ORDER MADE UNDER THE EXPULSION OF UNDESIRABLES ORDINANCE

(CHAPTER 99)

‘WHEREAS I have deemed it conducive to the public good to make an expulsion order in respect of Rolf Brandt of 3A Queen Street, Georgetown.

“NOW THEREFORE under section 4 of the Expulsion of Undesirables Ordinance, as amended by the Expulsion of Undesirables (Amendment) Act, 1967, and, by virtue and in exercise of all powers enabling me in that behalf I do hereby direct that the said Rolf Brandt do leave Guyana by the 10th day of December, and thereafter remain out of Guyana.

Made this 3rd day of December, 1970.

(Sgd.) A. CHUNG

President.”

4 The appellant then consulted Dr. F.H.W. Ramsahoye, Barrister-at-Law, who made representations in writing for him on the 7th December, 1970, to the President, under s. 6 of the said Ordinance.

5 In view of the importance of that section and what revolves around it, I shall set it out at length. It reads thus:

• “(1) Any person against whom an expulsion order has been made may make representations in writing to the Governor setting forth reasons for non-compliance with such order or for non-enforcement thereof or for allowance of further time to comply therewith, and on any such person signifying his desire so to make representations the person in whose custody he shall be shall give him all reasonable assistance for their preparation and forward the writing to the Governor.

• “(2) On receipt of any such representations the Governor shall with all due dispatch inquire into them and decide upon them.”

6 In the representations made, the following reliefs were there prayed for in addition to any other which to the President “may appear just”, viz.:

• “(a) that the order of expulsion be revoked and/or suspended or be not enforced either generally or for such period or periods as may appear just;

• (b) that the applicant be allowed to remain in Guyana and in any event to make such further oral or written representations as may be allowed either by himself or his legal representative until such representations and these representations are heard and determined;

• (c) that the applicant be permitted upon viva voce hearing to know of any conduct on his part which led to the making of the expulsion order and to be further permitted to make representations in defence of an explanation of such conduct; and

• (d) that the applicant and his legal representative be granted audience with the Honourable Minister of Home Affairs at such time as way be convenient to the Minister before the determination of these representations.”

7 After this, the Minister spoke to Dr. Ramsahoye, on the telephone and personally (it is not known exactly when, but it would have been between the 7th and 10th December, 1970). In the course of those conversations, the Minister for the first time explained the reason for making the order. This was based on allegation that the appellant was a person who was “racially prejudiced against non-European people.” Three incidents were related in which the appellant was alleged to have been involved. It was said that he told a Guyanese girl selling poppies that she should be selling “black crosses” instead; that he told a senior official of the Ministry of Home Affairs that Guyana was “the poorest country in the world” and that he was prepared to advertise that fact in Germany; and, further, that he had made “a quarrel” with a Miss La Borde, a servant of one of the Corporations while she was eating in the course of her duty. All of this appears in the affidavit of the appellant and is based on what Dr. Ramsahoye communicated to him. There was no answer to what so appears in the appellant's affidavit.

8 The reply to the written representations consisted of a letter dated 10th December, 1970, from the Secretary to the Office of the President which is as follows:

Dear Sir,

I am directed by His Excellency the President to refer to your communication dated 7th December, 1970, on the matter of your expulsion from Guyana and to inform you that after according the most careful consideration to your representations, it has bean decided that the Order made on the 3rd December, 1970, under the Expulsion of Undesirables Ordinance (Cap. 99) should stand. You will, however, be allowed until 31st December, 1970 to comply with that Order.

Yours faithfully,

(Sgd,) C. R. Jaxvis,

Secretary to the

Office of the President.”

9 At no stage was the appellant heard or given an opportunity to be heard as was requested at (c) of his written representation. In those representations, made without the benefit of reasons for the expulsion Order, the following was brought to the notice of the President:

• (a) On the 14th November, 1970, in reply to a letter written on behalf of the applicant by Messrs. Clarke & Martin, Solicitors, the Permanent Secretary to the Ministry of Home Affairs wrote that the Honourable Minister of Home Affairs was satisfied that the applicants continued presence in Guyana was undesirable and that the Honourable Minister had instructed the immigration authorities to invite the applicant to leave Guyana voluntarily.

• (b) The Honourable Minister's reasons for his decision were not then given either to Messrs. Clarke & Martin, Solicitors, or to the applicant.

• (c) The applicant while resident in Guyana has limited his activities to his work with the firm of Robert Alke and Company and has not engaged in pursuits likely to influence the affairs or life in the country in a manner prejudicial to its well-being. In particular, the applicant has had no political or public activity and has lived in a manner usual for a private citizen.

• (d) The applicant while being aware of his foreign nationality and of his position as a foreign national is sympathetic to the needs and aspirations of the people of Guyana and has at all material times conducted himself in a manner consistent with his recognition of his own position and with respect for the people of Guyana.

• (e) The applicant believes in the equality of man and abhors discrimination on the ground of race, religion or creed. He believes in the rule of law and in the peaceful and orderly development of society in accordance with the rules made by those in authority and in accordance with fundamental notions of order, discipline and regularity.

• (f) The applicant while living in Guyana has abided by the laws of the country and has not been in conflict therewith. In particular the applicant has committed no offence and has not been suspected of having committed any. The applicant has had an excellent record as a law-abiding resident of Guyana.

• (g) The order made against the applicant will, if enforced, cause grave hardship to the applicant and a dislocation of his family life. The termination of the applicant's appointment as Manager of the business of Robert Alke and Company in Guyana will necessitate for him a search for another position elsewhere and will result in inconvenience and financial difficulties for himself and his family.

• (h) The applicant has never intended to come into conflict with the authorities who determine whether he should be permitted to remain in Guyana and wishes to defend or explain any conduct on his part which might have led to the making of the said order.

10 On the 34th December, 1970, the appellant, by way of a writ of summons, sought a declaration from the Court that the expulsion order made by the President on the 3rd December, was illegal, unconstitutional, void and of no effect, and prayed for an injunction restraining the second-named respondent, in his capacity as Commissioner of Police and Chief Immigration Officer, from arresting or deporting him in pursuance of the said order. At...