Re Callender
| Jurisdiction | Guyana |
| Judge | Kennard, C.,Singh, J.A.,Chang J.A. |
| Judgment Date | 06 April 2001 |
| Neutral Citation | GY 2001 CA 3 |
| Docket Number | Civil Appeal No. 37 and Civil Appeal No. 35 of 1997 |
| Court | Court of Appeal (Guyana) |
| Date | 06 April 2001 |
Court of Appeal
Kennard, C.; Singh, J.A.; Chang, J.A.
Civil Appeal No. 37 and Civil Appeal No. 35 of 1997
Benjamin Gibson for the appellant.
Doodnauth Singh SC for the Commissioner of Police.
Judicial review - Order of certiorari and mandamus — Restoration of applicant to police force and motion dismissed — Appeal — Criminal charge against the appellant had been dismissed — Whether the Commissioner of Police could properly discharge appellant from the police force although criminal charge dismissed — Reference to section 37(a)(1)(b) — Issue of reinstatement — Court has no power to order reinstatement of police constable — Appeal dismissed.
The appellant had instituted proceedings by way of Motion seeking the following orders:
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(a) orders or rules of certiorari and mandamus directed to the Commissioner of Police removing into this court the order of dismissal dated 2 May 1995 for the purpose of being quashed and restoring the applicant to the Police Force; and
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(b) any other or further order. [emphasis supplied]
The late Jagnandan, J who heard the motion dismissed it on 2 May 1997 and the appellant has now appealed to this Court from that decision. In his judgment the judge stated (inter alia): “Based on the affidavits before the court, the statutory [provisions] and principles of law governing the issues to be considered, I make the following findings:
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(i) the [appellant], a constable in the Guyana Police Force, absented himself from duty without justification;
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(ii) the [appellant] deprived himself of any right to be heard Because of his non-availability;
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(iii) any failure on the part of the Commissioner of Police to invoke the statutory procedure under the Police Act and the Police Discipline Act was not deliberate But due primarily to the [appellant's] absence and non-availability;
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(iv) the Commissioner of Police had just cause to discharge the [appellant] from the Guyana Police Force and he did not exceed his jurisdiction in so doing;
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(v) the [appellant's] discharge from the Guyana Police Force on 31 December 1994 by the Commissioner of Police Was for just cause and it was not unlawful, void or unconstitutional;
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(vi) that orders sought by the [appellant] for certiorari and mandamus are hereby refused;
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(vii) that the declaration sought by the [appellant] for re-instatement to the Guyana Police Force is hereby refused; and
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(viii) the [appellant] must be paid all just entitlement due to him up to the time of his discharge from the Guyana Police Force on 31 December 1994.' [emphasis supplied]
The appellant, being dissatisfied with that decision, has appealed to this court and counsel on his behalf contended before us, on the main, that the criminal charge of illegal withdrawal from the Police Force having been dismissed by the magistrate, the Commissioner of Police could not properly discharge the appellant from the Police Force unless a disciplinary charge was brought against him under the Police (Discipline) Act, and this charge had to be based on fresh facts. Otherwise, the plea of ‘autrefois acquit’ would apply.
However, before dealing with the ground of appeal, it is necessary to refer to facts as revealed by the affidavits filed in support of the motion and those filed in answer thereto. The appellant, who joined the Guyana Police Force on 1 November 1990 as a constable, did not report for duty on 31 December 1994 or at any time thereafter. However, he had submitted two medical reports to cover the periods 3 to 9 January 1995 and 10 to 16 January 1995, respectively.
After the appellant had not reported for duty Insp Breedy visited the appellant's home at the corner of Gordon Street and Stanley Place, Kitty, twice in January 1995, but he was not located. Insp Shury had also visited the appellant's home on several occasions during January 1995 for the purpose of arresting him, not only in connection with his failure to report for duty but also in connection with allegations made against him of forgery and of issuing a forged driver's licence. However, the appellant could not be located. Apart from going to the home of the appellant, Insp Shury also went to a house in South Ruimveldt Gardens in search of the appellant, but again he was not located.
The appellant not having been found and not having reported for duty, a charge of illegally withdrawing from the Police Force was instituted against him on 10 March 1995 in the magistrate's court.
On 15 March 1995, the Commissioner of Police wrote a letter to the appellant, the body of which reads:
“Having failed to report for duty since 10 March 1995 you are deemed to have illegally withdrawn from the Guyana Police Force in contravention of s 37A(1)(b) of the Police Act.
You will be paid up to and including 9 March 1995 and therefore struck off the strength of the [Police] Force with effect from 10 March 1995 in accordance with the powers vested in me under the provisions of s 212(3) of the Constitution of the Co-operative Republic of Guyana Act, 1980.'
However, on 18 April 1995 the criminal charge against the appellant was dismissed by the magistrate. Mr. Doodnauth Singh SC informed us that the charge was withdrawn and was not decided on its merits. Whether the charge was withdrawn or decided on its merits is immaterial as, the appellant having pleaded to the charge, it would amount to a previous acquittal and he could not again be charged for the same offence (see art 144(5) of the Constitution, Kingston v. Owen [1958] LRBG 223, R v. Benson [1961] LRBG 523, Bowen v. Johnson (1977) 25 W.I.R. 60, s 49(1) of the Police Act, Bollers v. Cannon [1961] LRBG 142 at 143, and Munisar v. Bookers Demerara Sugar Estates Ltd (1979) 26 W.I.R. 337 at 348). Following the dismissal of the charge by the magistrate the Commissioner of Police wrote another letter to the appellant on 2 May 1995 which reads:
“Having failed to report for duty since 31st December, 1994 you are deemed to have illegally withdrawn from the Guyana Police Force in contravention of s.37A(1)(b) of the Police Act.
You will be paid up to and including 30 December 1994 and, therefore, struck off the strength of the [Police] Force with effect from 31 December 1994 in accordance with the powers vested in me under the provisions of s 212(3) of the Constitution of the Co-operative Republic of Guyana Act 1980.
My notice of even number dated 15 March 1995 is hereby cancelled.'
L.L. Lewis DSS
Commissioner of Police
It is necessary for me to set outs 37A(1)(b) and (2) of the Police Act which reads thus:
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(1) Every inspector, subordinate officer or constable who –
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(a) ……
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(b) absents himself from duty for a space of twenty-four hours or more without permission or without lawful excuse shall be deemed illegally to have withdrawn from the [Police] Force and shall be guilty of an offence and shall, on summary conviction thereof, be liable to a fine of not exceeding $250 or to imprisonment for a term not exceeding three months.
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(2) It shall be sufficient in any charge or complaint for an offence under this section to state that the person proceeded against did illegally withdraw himself from the [Police] Force, and the onus of proving that any withdrawal was with permission, or any absence from duty for twenty-four hours or more was with permission or lawful excuse shall be on the person proceeded against.” [emphasis supplied]
According to the Oxford Dictionary and the Thesaurus the word “deem” means, regard as, consider as (see also Credit Corporation v. Deen [1965] LRBG 260, Kwame Apata v. Roberts (No 2) (1982) 31 W.I.R. 219, Nielsen v. Barker (1982) 32 W.I.R. 254, and Demerara Bauxite Co Ltd v. Hunte (1974) 21 W.I.R. 109).
In Nielsen v. Barker Massiah, J.A. said (at p 288):
“In the draftsman's thesaurus the word “deemed” must rank as perhaps the most utilitarian. In its normal signification it means ‘regarded as being’ or ‘considered to be’. By its employment in a statute something could be made out of nothing, and matters of apparent significance reduced to the level of mere trivia. Thus a statute may enact that something should be deemed to have been done which, in fact, was not done; or may enact that a thing be deemed to be something else; or that some future event shall be deemed to have happened in the past. When, therefore, the applicant was deemed to be a prohibited immigrant under the provisions of s.5 of the Immigration Act, it meant that for all intents and purposes he was to be regarded as a prohibited immigrant and s.3 of that Act; as already: stated, expressly provides that he “may be dealt with as such”. But the true point of contestation in the instant matter is whether he was so deemed on the date when he entered Guyana, or on some subsequent date, as the applicant contended.
It seems clear to me that he must have been deemed to be a prohibited immigrant at the very moment when he entered Guyana without a passport. I say so because s.5 does not provide that any person is required to perform an act which would be necessary to constitute a person a prohibited immigrant. The prohibition is contained in the statute itself It springs from the act of entering Guyana without a passport and from nothing else. No other pre-requisites are needed. That is all that is required for the provision to begin to operate against an offender; it requires no administrative or magisterial order, or other overt step, to deem a person a prohibited immigrant, for it is by the statute itself that the person is so deemed. When therefore the applicant committed the offending act, that is to say entered Guyana without a passport, he was at that very moment considered to be a prohibited immigrant by operation of law. In my judgment, therefore, the applicant was deemed to be a prohibited immigrant on 2 April 1981 when he entered Guyana.”
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