Caesar, Godfrey: Application for Orders of Certiorari and Mandamus
| Jurisdiction | Guyana |
| Judge | Bishop, J.A. |
| Judgment Date | 15 February 1989 |
| Neutral Citation | GY 1989 CA 4 |
| Docket Number | Civil Appeal No. 28 of 1986 |
| Court | Court of Appeal (Guyana) |
| Date | 15 February 1989 |
Court of Appeal
Harper, J.A.; Kennard, J.A.; Bishop, J.A
Civil Appeal No. 28 of 1986
B. Gibson for the appellants.
F. Peters for the respondent.
Judicial review - Certiorari and Mandamus — Applicant supernumerary sergeant — Informed of his termination of service without any hearing being held — Whether appellant entitled to be treated as a member enlisted in the regular police force — Whether appellant a statutorily protected person — Police Act, Chap. 16:01, Laws of Guyana, s.82.
There were ten points raised as a result of three main grounds of appeal, by Mr. Gibson, counsel for the appellant. At any rate the arguments were inter-related and proposed basically that the appellant, a supernumerary sergeant, in June 1983, was entitled to be treated as a member enlisted in the regular police force of Guyana and, therefore, any attempt to remove him from the ranks of the security service of the Guyana Mining Enterprise Limited would have been improper, if there was non-compliance with the statutory provisions of section 82(3) of the Police Act, chapter 16:01. Counsel short point was that the supernumerary was a statutorily protected person and that accrued to him were certain public law rights which gave rise to the invoking of administrative law. [See Appendix in which section 82 appears].
The contention of counsel was that the earlier decisions of this court, in Demerara Bauxite Co. Ltd v Hunte [1974] 21 W.I.R. 109, and Munisar v Bookers (Demerara) Sugar Estates Ltd [1979] 26 W.I.R. 336 in which it was unanimously decided that supernumerary constables were not members of the Guyana Police Force, but were subject to police discipline, while fundamentally in a master and servant relationship with the employing company, were judgments that were per incuriam, wrong and should be set right. Section 82(3) deals specifically with supernumeraries and reads:
“The men so appointed shall be subject to all the provisions of this Act and the regulations made thereunder, relating to discipline, punishment, powers and immunities of constables.”
But first the facts. It would appear that the appellant was paraded before the duty officer, Inspector Langevine, on May 8 th 1983, and told that he was “interdicted from duty pending investigations(into his conduct and that of certain other members of the supernumerary constabulary of the company. However, no hearing followed, nor was a response to any charge, if formulate, invited from the appellant. Instead, on May 25 th 1983, he received from the Commissioner of Police, notice of termination, of his services. He was required to return all items of the company's property, previously issued, to him, not later than May 31 st 1983. The letter made no reference to any form misconduct alleged or proved against the appellant. Indeed no reason was given for the termination. But, incorporated in his affidavit in support of the application, (for the orders), the appellant quoted from correspondence which emanated from the chief security officer of the company to the Commissioner of Police. It reads:
(#412 Sergeant Godfrey Caesar Termination of Service from GUYMINE Constabulary
I refer to the above subject and wish to inform you that Guymine no longer desires to retain the services of Godfrey Caesar, and in accordance with the provisions of section 82(6) of the Police Act, chapter 16:01 requests that his services to be terminated with effect from 1983-06-01 and that he be paid one month's salary in lieu of notice.
Yours co-operatively,
A.H.G. Crevalle.”
In a later paragraph of his affidavit, the appellant deposed that information, he had received from the Commissioner of Police on May 31 st, 1983 was to the effect that investigations had been conducted, unknown to the appellant, into allegations of bribery and corruption perpetrated by several members of the Constabulary and that the investigator, Inspector Clement had found the appellant to be involved hence his dismissal. The Commissioner in his affidavit, did not speak to that point. The word “dismissed” was not used by the employer or the Commissioner in any item of correspondence.
The appellant, on June 7 th 1983, filed a Notice of Appeal, directed to the Police Service Commission, but five days later, the Commissioner of Police replied:
“Dear Comrade,
Please refer to your Notice of Appeal in relation to your termination of service as a sergeant in the Supernumerary Constabulary in the employ of the Guymine Constabulary, Linden.
I have to inform you that in accordance with section 82(6) of the Police Act, chapter 16:01 your service could have been terminated by your employers.
In the circumstances, therefore, your appeal cannot be considered.
Yours faithfully,
L.A. Barker, D.S.S.
Commissioner of Police”
It is not clear whether the Commissioner's statement: (your service could have been terminated try your employers”, ways intended to mean that the employers could properly have so acted, if they had wished so to do or, whether the Commissioner was indicating that he himself had reviewed the facts and by his letter to Caesar, was giving the imprimatur to the company's decision as well as rejecting the appeal, on behalf of the Commission. At all events the appellant approached the High Court for Orders of Certiorari and Mandamus and there was no objection before us, to the course he took nor should such an objection have been successful, had it been argued that Caesar was required first to appeal to the Commissioner, and not the Police Service Commission. That would have been my reaction since his basic grievance was that there had been a failure, on the part of his superiors, to observe the principles of natural justice.
In Ridge v Baldwin [1963] 2 All E.R. 66, which also involved consideration of the audi alteram partem rule, Lord Reid answered the question governing the appropriate review tribunal to be approached by saying, at p.81 letters G-H:
“There are many cases where two remedies are open to an aggrieved person, but there is no rule that by going to some other tribunal he puts it out of his power thereafter to assert his rights in court.”
And even it the appellant had appealed to the Commissioner, there would have been no express waiver of his right to come to the High Court to have the declaration he sought: See Lord Reid, ibid - letters H-L. Then there is Annamunthodo v Oilfield Workers Trade Union [1961] 4 W.I.R. 117, in which Lord Denning exposed the weaknesses in the thesis that Annamunthodo who had challenged his expulsion from the union, on the ground that there had been a breach of the principles of natural justice, and had appealed to the annual delegates conference, the final internal tribunal, had lost his right to approach the court. His Lordship, at p.121 (ibid) explained:
“Even if the order of expulsion were capable of being affirmed or disaffirmed their Lordships cannot regard an appeal as an act of affirmance. On the contrary, it is a disaffirmance a complaint against the order of expulsion. If he had not appealed, it might have been said that he should have done so, that he should have exhausted all internal means of redress, before having recourse to the courts. Such a plea wits upheld in the special circumstances that prevailed in White v Kuzych [1951] 2 All E.R. 435. It was therefore quite proper for him to appeal to the annual conference before coming to the courts, even though he was not bound to do so. But, having appealed and failed he does not by so doing forfeit his right to redress in the courts. If the original order was invalid, for want of observance of the rules of natural justice, he can still complain of it, notwithstanding his appeal.”
Before us, therefore, stands the applicant (appellant) and he is entitled to be heard, having regard to his basic complaint, which was not successful in the High Court. There, Romao, J remarked:
(… from the law and the facts in this application, as pronounced upon already by me, Caesar had no right of appeal to the Police Service Commission with respect to his dismissal from Guymine by the Commissioner of Police and thus was not denied a fair hearing of the appeal. In a master and servant relationship no such right is enjoined as Hunte's and Munisar's cases upheld. No one can gainsay that it would have been ideal for Guymine to have given Caesar a fill opportunity to be heard with respect to whatever were the allegations against him, whether in conduct or quality of his work, or else. But in a master and servant relationship, the law makes no such demand. It is only so where the contract of service is fortified by statute, as in the Ridge and Malloch cases that such rights were imperative, and if not adhered to, then the employee can obtain from the court whatever administrative law reliefs are fitting in the particular circumstances. But this is not the position, here for Caesar's settled status at law does not attract such rights.”
As he concluded his judgment, Romao, J made this observation:
“My function here as I conceive it, is to determine whether orders or rules of certiorari and mandamus should be issued an the merits of this application and nothing more. What is clear to me is that the relationship between Guymine and Caesar was one of master and servant and that Guymine could and did, dismiss Caesar and the Commissioner so informed him. Such dismissal was not questioned by the Commissioner of Police, and is therefore not one which the Police Service Commission could rightly entertain, and accordingly the Commissioner of Police acted within his legal authority in not causing Caesar's appeal to the Police Service Commission to be entertained or considered, because there was no basis for him so to do.”
In Demerara Bauxite Co. Ltd v Hunte (1974)...
To continue reading
Request your trial