The Attorney General and the Commissioner of Police v Greene

• Jurisdiction: Guyana
• Judge: Ramson, J.A.
• Judgment Date: 27 November 2008
• Neutral Citation: GY 2008 CA 10
• Docket Number: Civil Appeal No. 89 of 2006
• Court: Court of Appeal (Guyana)
• Date: 27 November 2008

Court of Appeal

Ramson, J.A.; Roy, J.A.; Cummings-Edwards, J.A.

Civil Appeal No. 89 of 2006

The Attorney General and the Commissioner of Police

and

Greene

Appearances:

Mr. Doodnauth Singh S.C. Attorney General for the appellants/respondents.

Mr. Benjamin Gibson for respondent/applicant

Practice and Procedure - Fundamental rights and freedoms — Redress — Availability of alternative adequate means of redress — Alternative means of redress not precluding constitutional motion — Discretion of court to refuse constitutional relief where parallel remedy available — Special feature in constitutional claim — Existence of constitutional claim together with claims for which common — law remedy available — Need for court to be flexible and avoid striking out constitutional claim.

Ramson, J.A.

1 This appeal seems to represent an enduring mission that the Courts in this jurisdiction would ultimately resile from an insensitivity to the peccadilloes of a cadre of practitioners who appear convinced, beyond the constraints of the doctrine of stare decisis, that the rules of natural justice do not transmogrify the concept of fairness into a fundamental right, notwithstanding the opinion of the learned authors, Sir William Wade and Christopher Forsyth in Administrative Law (7th ED) at p. 519, “Natural justice has achieved something like the status of a fundamental right”. (see also FRASER v. STATE SERVICES COMMISSION [1984] 1 N.Z.L.R. 116.). Time and again, our Courts, including our recently inaugurated municipal court of last resort, have ruled that a police officer enjoys, at best, a servant/master relationship with the Commissioner of Police, the latest pronouncement on this issue being embodied in the judgment of the collegiate Bench in VIBERT GIBSON v. A.G OF GUYANA (2008) CCJ 7 (AJ), i.e. the instant appeal was “concerned with the exercise of the jurisdiction conferred upon the High Court relating to redress for the contravention of the provision of the constitution for the protection of fundamental rights…. Counsel suggested that his Client's claim to be entitled to salary, pension and superannuation benefits was a claim premised on the breach of a fundamental human right” (para 4).

2 But more of this later.

3 The record of the instant appeal discloses that the High Court was moved under ART 153 of the Constitution of Guyana for the following relief:-

• (a) A declaration that the applicant's removal from the force is unconstitutional, null and void.

• (b) A declaration that the applicant has a right to superannuation.

• (c) A declaration that the unlawful withholding of the half pay due and owing to the applicant is a forfeiture and therefore unconstitutional.

• (d) Payment to the applicant of all sums due and owing to him by way of salary and allowances.

• (e) Costs.

4 In his affidavit in support of this motion he averred that he was removed from the force summarily with effect from the 1st day of November 2002 by letter issued by the Commissioner of Police pursuant to S. 35(1) of the Police Act, CAP 16:01. At the time he was facing a criminal charge of “larceny by a Public Officer”, contrary to S. 185 of the Criminal Law (Offences) Act, CAP 8:01, had been interdicted from duty and was in receipt of half of his salary. This charge was however dismissed by a Magistrate one week subsequent to his removal. He further averred that his removal was tantamount to a deprivation of office and tenure which he held since 1978 and his superannuation benefits guaranteed by ART 214 of the Constitution CAP 1:01, the last of which constituted ail deprivation of property as well. The respondents, by way of affidavit in answer deposed to by Deputy Superintendent of Police, Haim Persaud, had conceded that the applicant was entitled to payment of the half of his salary withheld prior to his removal from the Force. He however had further contended that he met with the applicant and requested him on several occasions “to submit a statement which he has not done”. We pause here toll state that the viva voce evidence given by the applicant was that he was met by the deponent in the vicinity of a Dental Clinic in Georgetown and, there and then, the request, if any, was made but he refused. Under cross-examination the following testimony emerged:

“Inspector Persaud told me to submit a statement as to why I should not be dismissed. I told him I wrongfully charged, wrongfully accused and placed before the Court and could end up in a jail yard…. I am not writing no statement… I had an opportunity to respond but I did not do so….”

5 Juxtaposed with this deposition the respondents had relied upon the averments contained in their affidavit in answer aforementioned to the effect that “before a decision was taken to discharge the applicant, he was given an opportunity to be heard as to why he should not be dismissed from the Force” and that “the Commissioner of Police acted properly in pursuance of the powers vested in him under S. 35 (1).” Consequently, the applicant was not entitled to any relief other than his half pay withheld from him during his interdiction from duty, consistent with the provisions of S. 43 of the Police Act, CAP 16:01 which states:

“Any inspector, subordinate officer or constable against whom any complaint or information, of an offence punishable on summary conviction or of an indictable offence has been laid may, until and pending his trial, be interdicted from duty at the discretion of the Commissioner and paid at such rate of pay, being not less than half pay, as the Commissioner may deem fit:

Provided that if the complaint Or information is dismissed or the inspector, subordinate officers or constable is acquitted, the Commissioner shall direct the whole of the pay withheld under this section to be paid to the inspector, subordinate officer or constable as the case may be”.

6 Counsel for the respondent in his usual painstaking presentation drew this Court's attention to BELFONTE (Dpmain) v. AG (2006) 68 W.I.R. 413, a decision of the Court of Appeal of Trinidad & Tobago, notwithstanding that the learned Attorney General in his arguments did not dilate upon this issue, i.e., where a complaint is made of a breach of a constitutional right, it would be an abuse of the process if an applicant who has a parallel common-law remedy uses the constitutional procedure for redress unless there is some special feature which indicated that in the particular circumstances the common-law remedy would not be adequate. Pausing for a moment here it would not be inapposite to observe that in our ART 153 allowance appears to have been made for the adoption of such a procedure, i.e. constitutional redress is appropriate “without prejudice to any other action with respect to the same matter which is lawfully available…”

7 In delivering the decision in BELFONTE (supra) Sharma, C.J. considered successive authorities emanating from the Judicial Committee of the Privy Council, in particular, THAKUR PERSAUD JAROO v. AG (2002) 59 W.I.R. 519 and AG v. SIEWCHAND RAMANOOP (2005) 66 W.I.R. 334, and concluded:

“In the present case the judge agreed that the cutting off of a person's hair against his will and the inflicting of physical blows on an individual can amount to breaches of his constitutional rights to security of the person or the Common law tort of assault and battery” (p. 421) and,

“(d)espite acknowledging the opinion of the Board in SIEWCHAND RAMANOOP, the judge…. erred in dismissing the Motion in its entirety. A trial judge in my view should make every effort to save the proceedings where it is just and reasonable to do so. Matters of procedure are to be kept flexible in order to do justice between the parties.” p. 422, letters (g–h).

8 In the instant appeal it is indisputable that the failure to pay the moneys withheld under S. 43 (supra) may be classified as a deprivation of the property rights of the applicant and thus there could be no serious contention that the adoption of the motion proceedings countenanced by...