Dwarka Nauth Applicant v Attorney General of Guyana The Public Service Commission The Regional Executive Officer The Minister of Finance Respondents

CourtCaribbean Court of Justice (Appellate Jurisdiction)
Docket NumberCCJ Application No AL 7 of 2006
JudgeThe Hon. Mme Justice Bernard
Judgment Date27 Jun 2007
JurisdictionCaribbean States
Neutral Citation[2007] CCJ 4 AJ

[2007] CCJ 4 (AJ)

IN THE CARIBBEAN COURT OF JUSTICE

Appellate Jurisdiction

ON APPEAL FROM THE COURT OF APPEAL OF THE CO-OPERATIVE REPUBLIC OF GUYANA

Before

The Rt Honourable and the Honourables

Mr Justice de la Bastide, President

Mr Justice Nelson

Madame Justice Bernard

CCJ Application No AL 7 of 2006

GY Civil Appeal No 49 of 2003

In the matter of an Application by Dwarka Nauth for Special Leave to Appeal in terms of Articles 142 and 144 of the Constitution of Guyana

Between
Dwarka Nauth
Applicant
and
The Attorney General of Guyana
The Public Service Commission
The Regional Executive Officer
The Minister of Finance
Respondents
Appearances

Mr Benjamin E Gibson, Ms Mandisa A BreedyandMr Rudyard W Ceresfor the Applicant

Mr Vashist Maharaj and Ms Damone Younge for the Respondents

27

th June 2007

JUDGMENT of The Hon. Mme Justice Bernard

1

On 7 th May, 2007 after hearing arguments we refused an application by Dwarka Nauth for special leave to appeal against a decision of the Court of Appeal of Guyana. We promised to give the reasons for our refusal, and we now do so.

History of the litigation
2

On 25 th November, 1992 the applicant was appointed by the Regional Executive Officer of Region 2, as a temporary Social Security Officer. This is not a position in the permanent pensionable establishment of the Public Service, and does not fall under the control of the Public Service Commission.

3

On 6 th July, 1995 by Government Order No. 52/9/73 the applicant was appointed by the Public Service Commission to act as Assistant Hospital Administrator at the Suddie Hospital. This was a position in the permanent pensionable establishment of the Public Service. The acting appointment was terminated with effect from 1 st January, 1996 due to the applicant's interdiction from duty by his employer in his substantive post. He thereafter ceased to be under the control of the Public Service Commission.

4

By letter dated 31 st August, 2000 the applicant's services with the Regional Administration were terminated with effect from 1 st September, 2000 as his position had been abolished. As a result of this he appealed to the Public Service Appellate Tribunal (hereinafter referred to as “the Tribunal”) which is a statutory body established to hear appeals against decisions of the Public Service Commission. The Tribunal after a hearing concluded on 21 st March, 2003 that the applicant had been wrongfully removed from office, and recommended that he be compensated.

5

Consequent upon this decision the applicant filed proceedings in the High Court claiming the sum of $5,096,353.00 being salary from 1 st January, 1996. After hearing evidence the action was dismissed by Jainarayan Singh, J., and an appeal was filed to the Court of Appeal which was also dismissed on 13 th July, 2005. On 25 th August 2006 an application for leave to appeal to this Court was made to the Court of Appeal which refused such leave on 22 nd November, 2006. On 7 th December, 2006 the present application for special leave to appeal out of time was filed in this Court as well as an application for leave to appeal as a poor person.

Reasons for applications
6

The applicant asked that his failure to apply for special leave to appeal within the prescribed time be excused on the ground that on 13 th July, 2005 when the decision of the Court of Appeal was given, it was not known in Guyana that the Caribbean Court of Justice was fully operational and ready to accept appeals from the Guyana Court of Appeal. As a result he had written the Court of Appeal requesting that it reconsider its decision in exercise of residual powers granted to it by virtue of Article 123 of the Constitution and Section 3 of the Court of Appeal Act, Cap. 3:01. No reply was received to the first letter dated 22 nd August, 2005, nor to a second letter dated 24 th October, 2005 written to the Hon. Chancellor (ag.). The applicant alleged that the Court of Appeal was never reconvened to address the issues raised in his letters, and that he was advised that while the issue of jurisdiction was pending before the Court of Appeal he should not move to the Caribbean Court of Justice as it might prejudice the adjudication by the Court of Appeal.

7

The reasons advanced in support of his application for leave to appeal as a poor person were that he possessed no more than G$375,000.00 worth of property, and after having been unemployed for a considerable period of time, he was now employed as a school teacher earning G$48,000.00 per month, with a wife and four minor children to maintain.

8

At the hearing of the applications Counsel for the applicant informed the Court that a written judgment was not available from the Court of Appeal at the time when it gave its decision on 13 th July, 2005, and only became available later. He conceded that he was aware that under Rule 10.3(1) of the Caribbean Court of Justice (Appellate Jurisdiction) Rules, 2005 (hereinafter referred to as “the CCJ Rules”) the time for seeking leave to appeal to this Court from the court below was thirty (30) days from the date of judgment and so the time for applying expired on 12 th August, 2005. However, because of the unavailability of the written judgment there was delay in applying.

Submissions in support of application for special leave
9

The applicant's reliance on Section 3 of the Court of Appeal Act, Cap. 3:01 was based on the fact that the Court of Appeal in the exercise of its jurisdiction has all the powers and authorities vested in or exercised by the Supreme Court of Judicature in England on 1 st January, 1958, and the Court of Appeal of England and Wales possessed a residual jurisdiction to reopen an appeal which had already been determined. He further submitted that in the instant case the applicant who was a member of the Public Service was deprived of his office without compensation by a procedure which was...

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