Trotman et Al v Attorney General

• Jurisdiction: Guyana
• Judge: Ramson, J.A.,Cummings, J.A.
• Judgment Date: 05 February 2009
• Neutral Citation: GY 2009 CA 5
• Docket Number: Civil Appeal No. 79 of 2006
• Court: Court of Appeal (Guyana)
• Date: 05 February 2009

Court of Appeal

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

Civil Appeal No. 79 of 2006

Trotman et al

and

Attorney General

Appearances:

Mr. S. G. N. Fraser for appellant.

Mr. Doodnauth Singh S.C. for respondent.

Elections - Date of commencement of Parliament — Whether appointment of several Ministers of government was unlawful.

Constitutional law - Interpretation of Constitution — Articles 61 and 69 of the Constitution — Purposive interpretation.

Ramson, J.A.

1 Consequent upon the outcome of General Elections held on 28th Aug. 2006, the appellants who are all Executive Members of the Alliance for Change political Party, (hereinafter referred to as the AFC), launched proceedings by way of an Originating Summons under ORD 42, rule 2 of the High Court Rules, CAP 3:02 in accordance with s.10(1)(b) of the State Liability and Proceedings Act 1984. This Order so far as is relevant is set out in full for ease of reference.

• “1 …….

• 2. Any person claiming any legal or equitable' right in a case where the determination of the question whether he is entitled to the right depends upon the construction of an Act, may apply by originating Summons for the determination of such question of construction as to the right claimed.

2 It is opposite to note that the Fundamental Rights (Practice and Procedure) Act, 1988 did not adversely affect the invocation of this procedure in constitutional matters.

3 The Attorney-General was named as a party to these proceedings, as representing the State, by virtue of s.10(1) (a) of the 1984 Act. In effect, he represents the government of the day after the results of the Elections are declared and eventually, after the new Government is formed. For the record, it appears from the affidavit filed in support of the Summons that the AFC were allotted 5 seats, and the other Parties which were successful in garnering parliamentary seats, were the PPP/C-36; PNC/R-1G-22; TUF-1 and GAP-ROAR-1. This declaration of the results was made on the 31st day of Aug. 2006 and the current President was sworn in on the 2nd day of Sept 2006. Under ART 69 of the Constitution it would appear that the 9th Parliament ought to have been convened for its first sitting by the latest, on the very day. However, the Proclamation under the hand of the President was not issued until the 12th Sept 2006, identifying the 28th day of Sept. 2006 as the date for the convening of the 9th Parliament. Ministers were also sworn in on the 8th day of Sept. 2006 prior to the extraction of the names of persons who were on the List of Candidates for the PPP/C, which was subsequently done on the 12th and 13th of Sept. 2006. The Chief Elections Officer duly declared them to be Members of the National Assembly pursuant to S. 109 of the Representation of the People Act, CAP 1:03. Parliament was duly convened and the present appellants took up their seats therein 16 days after these proceedings were commenced. Save for the 5th named, who has been replaced by another from the AFC's list of candidates, they continue to so occupy those seats receiving all the benefits due to them thereby and have been, without objection or protest, participating in the deliberations of the National Assembly, including the passing of legislation.

4 ART 69 is the focal provision upon which the appellants' claim is based. They contend that the interpretation of this provision will determine the right contemplated by rule 2 since the Constitution of the Co-operative Republic of Guyana Act, CAP 1:01 contains the Constitution in the Schedule appended thereto. But more central to the propriety of these proceedings is the question, upon what right, legal or equitable, (and the jurisdiction of the High Court, and consequently, this Court, to entertain these proceedings depends solely upon it) does the determination of that question of interpretation depend? More importantly, to what right are they entitled? And as a corollary, to what declaration are they entitled from the Court?

5 We have scrutinised the Affidavit with the utmost care and circumspection and could find no averment in which any right, legal or equitable, is mentioned, much less has it become a source of grievance or complaint. If only to underline the inappropriateness of the procedure adopted by the appellants we need merely to replicate verbatim for the record and the determination of this appeal the sole declaration sought and, albeit granted, in the Originating Summons, i.e.:

• “(v) A declaration that Parliament is a necessary arm of the State of Guyana and must be convened in a timely manner and within parameters determined by this Honourable Court.”

6 The observations set out in the Summons do not encompass any right, legal or equitable, claimed by the appellants to depend on any question of construction of an Act, the determination of which would demonstrate whether they were entitled to that right. The procedure prescribed by ORD 42 r.2 is predicated upon a claim of some right, legal or equitable, to which the appellant alleged they were entitled and is a sine qua non for triggering its use. For the avoidance of doubt, these prayers for relief are set out hereunder:

• (i) Whether the President of the Co-operative Republic of Guyana can lawfully appoint a date for the commencement of Parliament, four months having elapsed from its last dissolution?

• (ii) Whether and in what circumstances can the President of the Co-operative Republic of Guyana lawfully convene Parliament, four months having elapsed from its ……….last dissolution?

• (iii) Whether the President of the Co-operative Republic of Guyana lawfully appointed the persons named hereunder as Ministers of the Government of the Co-operative Republic of Guyana, before their names were extracted from the List of Candidates by the representative, that is to say: Mr. Samuel Hinds; Ms. Carolyn Rodrigues; Mr. Clement Rohee; Mr. Sheik Baksh; Dr. Henry Jeffrey; Dr. Desiree Fox; Mr. Khellawan Lail; Mr. Robeson Benn; Dr. Frank Anthony; Dr. Bheri Ramsarran; Ms. Priya Manickchand; Dr. Leslie Ramsammy; Mr. Harrinarine Nawbatt; Dr. Rudy Insanally; Mr. Robert Persaud (MBA); Dr. Jennifer Westford; Ms. Jennifer Webster; Dr. Ashni Singh; Mr. Doodnauth Singh; Mr. Manzoor Nadir; Mr. Manniram Prashad.

• (iv) Whether the President of the Co-operative Republic of Guyana lawfully appointed the persons named hereunder as Ministers of the Government of the Co-operative Republic of Guyana, before the convening of Parliament by way of proclamation, that is to say: Mr. Samuel Hinds; Ms. Carolyn Rodrigues; Mr. Clement Rohee; Mr. Sheik Baksh; Dr. Henry Jeffrey; Dr. Desiree Fox; Mr. Khelawan Lail; Mr. Robeson Berm; Dr. Frank Anthony; Dr. Bheri Ramsarran; Ms. Priya Manickchand; Dr. Leslie Ramsammy; Mr. Harrinarine Nawbatt; Dr. Rudy Insanally; Mr. Robert Persaud (MBA); Dr. Jennifer Westford; Ms. Jennifer Webster; Dr. Ashni Singh; Mr. Doodnauth Singh; Mr. Manzoor Nadir; Mr. Manniram Prashad;

7 Declarations are granted in the discretion of the Court. As this Court sought to point out in a recent judgment in COMMISSIONER GENERAL OF THE REVENUE AUTHORITY ET AL v. CARIBBEAN CHEMICALS (Guyana) Ltd. (Civ. App. No. 112 of 2008), declarations are not true equitable relief: CHAPMAN v. MICHAFI SON [1908] 2 Ch. 238 nor was it “a legal or an equitable remedy but, statutory”, per Sir Robert Megarry in TITO v. WADDELL (No. 2) [1997] Ch. 106 at p. 259. Recognising the clear discretionary nature of this remedy ORD 42, r. 5 expressly provides:

“The Court or judge shall hot be bound to determine any such question of construction if in its or his opinion it ought not to be determined on Originating Summons”.

8 This rule therefore further enjoins the Court to be more vigilant than it would normally be in exercising this especial jurisdiction conferred upon it by s.10(1)(b) of the aforementioned 1984 Act and is to be given a restrictive interpretation. As was stated in DHAIOO v. THOM (1939) L.R.B.G. 262, per Richards, C.J. (at p. 265).

“It is the duty of every Court, whether of first instance or on appeal… to satisfy itself on its jurisdiction and if the Court is of opinion that it does not possess jurisdiction…: it is the duty of the Court … to pronounce accordingly.”

9 (See also Hing v. Hing (1978) 25 W.I.R 391: GUYANA SUGAR CORP v. SEERAM TEEMAL (1983) 35 W.I.R. 239: and KAMMINS BALLROOMS CO. LTD. v. ZENNI TH INVS. (TORQUAY) LTD. [1970] 2 All E.R. 871, and In the matter of the Fugitive Offenders Act, 1988 and Barry Dataram (Civ App. No. 158 of 2008) (unreported).

10 Out of some measure of regard for the effort of counsel for the appellants, two of whom are practising attorneys-at-law of some years standing, we shall deal briefly with the major issue raised by him. That is, the effect of the amendment of ART 61 of the Constitution, though purportedly properly done by the stated unentrenched procedure, was unconstitutional for it in effect amended ART 69 (which required an amendment by a two-thirds majority in Parliament), indirectly. In support of this contention he cited AKAR v. AG [1970] A.C. 853, the facts of which are transcendentally offensive to the normative conduct of the affairs in a civilised democratic society. An amendment to a constitution which is deemed to take effect one year before it is passed, thereby depriving a citizen of a country of his nationality and citizenship acquired by virtue of the very Constitution as originally promulgated, based on his race, is too odious for judicial approbation; a fortiori, where the amendment is passed by a non-entrenched procedure in clear violation of another fundamental right provision which requires passage by an entrenched procedure!

11 With equal facility of reason he also contended that if ART 61 was unconstitutional, the General Elections held pursuant to it, was equally unconstitutional and, therefore, the Proclamation issued by the...