Griffith v Guyana Revenue Authority et Al
| Jurisdiction | Guyana |
| Judge | de la Bastide, P.,Nelson, J.A.,Pollard, J.A.,Bernard, J.A.,Wit, J.A. |
| Judgment Date | 12 May 2006 |
| Neutral Citation | GY 2006 CA 6 |
| Docket Number | CCJ Application No. 1 of 2006 |
| Court | Court of Appeal (Guyana) |
| Date | 12 May 2006 |
Caribbean Court of Justice
de la Bastide, P.; Nelson, J.A.; Pollard, J.A.; Bernard, J.A.; Wit, J.A.
CCJ Application No. 1 of 2006
Mr. Benjamin Ewart Gibson and Ms. Mandisa Adanna Breedy for the applicant
Mr. Vashist Maharaj for the first respondent
Mr. Mohabir Anil Nandlall for the second respondent
Practice and procedure - Leave to appeal to the Caribbean Court of Justice — Appellant failed to apply for leave within the prescribed time period — Whether special leave to appeal could be granted in a constitutional matter — Applicant demonstrated no real prospect of success in his appeal — Leave refused — Application dismissed.
Judgment of the Court delivered by the Honourable Mr. Justice Rolston Nelson: Some eighteen years ago Mr. Brent Griffith, the applicant in these proceedings, joined the Customs Department, a department in the Public Service, as a customs guard. The year after he joined he was promoted to the position of Customs Officer. In 1996 it appears he held the post of patrol officer.
In 1996 Parliament passed the Revenue Authority Act, 1996 (No. 13) (hereinafter referred to as “the Act”). By the Act the functions and powers, assets and liabilities of the Inland Revenue Department and the Customs Department were transferred to a new corporate body, the Revenue Authority.
In 1996 pursuant to section 6 of the Act the government notified the applicant of its desire to transfer him to the Authority. The applicant agreed to be transferred to the Authority rather than remain in the Public Service. The applicant began employment with the Authority on January 28, 2000 when the Act came into force.
Between August 23, 2000 and September 23, 2000 the applicant was absent from duty. On September 21, 2000 he submitted to the Authority two medical certificates for the period of his absence, but those certificates were not accepted apparently on the ground of failure to submit a medical certificate within the first three days of absence contrary to item 40 of the Schedule to the Guyana Revenue Authority's Employee Code of Conduct (prescribing dismissal for the first offence). On the same date September 21, 2000 a letter of dismissal was sent to the applicant. The applicant claims he never received that letter but received a copy of that letter towards the end of October at the head office of the Revenue Authority. On October 23, 2000 the Commissioner of Customs ordered him to leave the Revenue Authority's premises.
The litigation history
By notice of motion dated November 26, 2001 the applicant began constitutional proceedings in which he sought the following relief:
“(a) an order declaring the applicant's removal from the service of the Authority as illegal, unconstitutional, null and void;
(b) an order for the applicant's reinstatement;
(c) an order for the payment of salary and superannuation;
(d) costs.”
As the application is drafted, a declaration of nullity, if granted, will result in the dismissal being treated as if it never occurred and in the applicant's reinstatement. However, in that event the applicant would not be entitled to payment of superannuation benefits. The courts below seem to have treated the claim as one for a declaration that the dismissal was in breach of the applicant's constitutional right of property in the public office he held and/or the superannuation benefits he has not been paid. The appeal in this court proceeded on the same basis.
On April 22, 2003 Mr. Justice B. S. Roy dismissed the motion on the ground that the Revenue Authority, being a separate legal entity and not a government department, had an employer — employee relationship with the applicant. Breach of that relationship gave rise to damages for breach of contract in private law. The claim for constitutional redress was therefore misconceived.
By notice dated May 2, 2003 the applicant appealed the decision of Mr. Justice B. S. Roy. The Court of Appeal (Mme. Justice Singh, Kissoon and Chang JJ.A) dismissed the applicant's appeal on December 8, 2005. The applicant now applies to this court for special leave to appeal.
The Caribbean Court of Justice
On February 14, 2001 in Barbados the Members of the Caribbean Community signed the Agreement establishing the Caribbean Court of Justice (“CCJ”). The CCJ was invested with an original jurisdiction to interpret and apply the Revised Treaty of Chaguaramas establishing the Caribbean Community including the Caricom Single Market and Economy together with an appellate jurisdiction as a final Court of Appeal. The Agreement entered into force on July 23, 2002.
The Caribbean Court of Justice Act, 2004 (No. 16) (“the CCJ Act”), which enacted the Agreement of February 14, 2001 and made it part of the municipal law of Guyana, came into force in Guyana on April 1, 2005 by Order No. 10 of 2005 made by the Attorney General and Minister of Legal Affairs. By the CCJ Act the Agreement establishing the CCJ and the Rules have the force of law in Guyana. On June 17, 2005 the President of the CCJ made and issued the Caribbean Court of Justice (Appellate Jurisdiction) Rules, 2005 (“the CCJ Rules”).
On the date of the judgment of the Court of Appeal therefore, December 8, 2005, the CCJ was Guyana's final court of appeal. Since the intended appeal was a constitutional matter the appellant had an appeal as of right but was required by rule 10.2(a) of the CCJ Rules to obtain from the Court of Appeal leave to appeal to this court and by rule 10.3(1) to apply to do so within 30 days of the date of the Court of Appeal judgment. The applicant did not do so.
The present application
By application filed on January 16, 2006 the applicant seeks from this court special leave to appeal as well as special leave to appeal as a poor person.
The applicant claims he is entitled to come to this court for special leave since owing to his attorneys' unfamiliarity with the procedure for exercising the new right of appeal to this court, no application for leave was made to the Court of Appeal within the prescribed time. He invited this court to exercise its discretion in his favour for the further reason that his appeal had merit and had a real prospect of success.
Counsel for the respondents opposed the motion. They contend that this court cannot entertain an application for special leave to appeal in a constitutional matter since special leave applications are restricted to criminal and civil matters. Counsel for the Attorney General further invited this court to reject both applications because the appeal lacked merit and was doomed to fail. Counsel for the Revenue Authority submitted that the CCJ had no jurisdiction to waive security for costs for a poor person since its jurisdiction was limited by section 13 of the CCJ Act to fixing the period within which security was to be provided.
The main issues arising out of these contentions are:
-
(1) Whether this court has jurisdiction to grant special leave to appeal where the intended appeal is neither civil nor criminal but relates to constitutional rights — the procedural question;
-
(2) Whether, if this court has jurisdiction, the applicant's case has sufficient merit to warrant the grant of special leave — the substantive question;
-
(3) Whether the applicant is entitled to special leave to appeal as a poor person — the in forma pauperis question.
The procedural question
The applicant at first conceded that his application did not fall within section 8 of the CCJ Act (special leave to appeal in civil and criminal matters), but fell rather within 6(d) of the CCJ Act (appeals as of right in constitutional matters). He later withdrew this concession which in our view had been rightly made. The real question is what flows from the fact that the intended appeal is as of right.
Appeals to the CCJ lie (1) as of right, (2) with the leave of the Court of Appeal or, (3) with special leave granted by the CCJ: see sections 6, 7 and 8 of the CCJ Act.
Special leave is not defined in the Act. It is a term commonly used by lawyers to connote approval for an appeal to proceed given by the court to which the appeal is directed. The phrase is used in contradistinction to leave to appeal obtained or obtainable from the court whose decision is the subject of the appeal. Thus, an application for leave if made to a final court as a preliminary to filing an appeal is an application for special leave, whether the subject-matter is civil, criminal, constitutional or other. The intended appellant must, however, satisfy the court that it ought in the circumstances to exercise the discretion which it undoubtedly has, in favour of granting special leave.
Even where the local statute or the Constitution (as the case may be) grants an appeal “as of right”, leave must still be obtained from the local court from which the appeal lies: see rule 10.2(a) of the CCJ Rules, which have the force of law in Guyana. The local Court of Appeal must then form a view as to whether “the proposed appeal raises a genuinely disputable issue in the prescribed category of case”: see per Lord Nicholls in Alleyne-Forte v. Attorney General [1997] 4 LRC 338, 343; (1997) 52 WIR 480, 486E. However, this is little more than a gate-keeping exercise since the appeal is as of right. There is no discretion in the Court of Appeal to withhold leave in an as-of-right case on the ground that the appeal lacks merit: see Lopes v. Chettiar [1968] AC 887 (PC). Similarly, where the appeal is as of right the local Court of Appeal may not in its inherent jurisdiction impose terms and conditions not contained in the legislative instrument granting the right of appeal: see Crawford v. Financial Institutions Services Limited (2003) 63 WIR 169.
In granting leave in as-of-right cases the local Court of Appeal...
To continue reading
Request your trial