Judicial and Legal Services Commission Appellant v [1] Horace Fraser [2] Attorney General of Saint Lucia Respondents [ECSC]

• Jurisdiction: Caribbean States
• Judge: BARROW, J.A.,Denys Barrow, SC,Justice of Appeal,Michael Gordon, QC
• Judgment Date: 28 November 2005
• Judgment citation (vLex): [2005] ECSC J1128-1
• Docket Number: CIVIL APPEAL NO.24 OF 2005
• Court: Eastern Caribbean Supreme Court
• Date: 28 November 2005

[2005] ECSC J1128-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Michael Gordon, QC Justice Of Appeal

The Hon. Mr. Denys Barrow, SC Justice Of Appeal

The Hon. Mr. Hugh Rawlins Justice Of Appeal

CIVIL APPEAL NO.24 OF 2005

Between:

Judicial And Legal Services Commission

Appellant

and

[1] Horace Fraser

[2] Attorney General Of Saint Lucia

Respondents

Appearances:

Mr. Sydney Bennett, QC with Ms. Patricia Augustin for the Appellant

Mr. Leonard Ogilvy for the First Respondent

Mr. Anthony Astaphan, SC with Ms. Georgis Taylor-Alexander and Mr. Rene Williams for the Second Respondent

BARROW, J.A.

1 The central issue raised by this appeal is whether the termination of the employment of a magistrate by the Government of St. Lucia (the Government) in reliance on a provision in a contract of employment, rather than by the Judicial and Legal Services Commission (the Commission) in the exercise of its constitutional power, is in breach of the Constitution.

2 The Government, the second named respondent, first employed Mr. Horace Fraser (the Magistrate), the first named respondent, as a magistrate on 6^th September 2000 on a contract for one year. The contracting parties were the Government and the magistrate. The last renewal was on 6^th September 2003. Among the terms of the contract was a provision in clause 6 that the Government could at any time determine the engagement on three months' notice or on paying one month's salary in lieu of notice.

3 During the magistrate's tenure allegations of corruption were made against him and the Commission, the appellant, decided to investigate the allegations. The appellant appointed a retired High Court judge to conduct an investigation. He recommended that the magistrate's employment be terminated pursuant to the termination clause in the contract of employment.

4 The Commission decided to act on the recommendation and by letter dated 5^th January 2005 "recommended" to the permanent secretary in the Ministry of the Public Service "that clause 6 of Mr. Fraser's contract be invoked and that his contract be determined with immediate effect upon paying him one month's salary in lieu of notice." In response to this letter from the Commission the permanent secretary wrote the magistrate a letter in which he referred to the report into the charges of misconduct and stated that "we have found the said charges" of misconduct substantiated, that the acts were in breach of clause 5 of the contract of employment1 and that in accordance with clause 6 of the contract the magistrate would be paid a month's salary in lieu of notice. The Permanent Secretary wrote a second letter the following day stating that it superseded the first letter. The second letter stated that the Commission had advised the Ministry that due to improper conduct on the magistrate's part his contract should be determined with immediate effect and on the basis of that advice his contract was being determined, effective four days later.2

5 The magistrate succeeded in the High Court on the claim that he brought pursuant to section 105 of the Constitution for a declaration that he had been removed from his post by

the Government and/or the Commission3 in contravention of s 91 of the Constitution.4 Shanks J ruled that the Commission had contravened section 91 of the Constitution when it induced the Government to remove the magistrate without reasonable cause. The learned judge also found that the Government had contravened section 91 by removing the magistrate from office when it had no power to so do. The learned judge ordered the Commission5 to pay damages to the magistrate equivalent to the net loss of salary and other benefits, including gratuity, for the approximately eight months that the contract had to run before its term would have expired, and damages of $10,000 for distress and inconvenience.

6 It is unfortunate that counsel did not draw to the attention of Shanks J that this court had considered the very issue of termination of the engagement of a magistrate in reliance on a contractual provision in the case ofThe Attorney General of St. Christopher and Nevis v Angela Jasmine Inniss.6 In that case the respondent had entered into a contract with the Government to serve as Registrar of the High Court and Additional Magistrate for a period of two years. A clause in that contract provided that the Government could at any time determine the engagement on giving three months' notice or on paying one months' salary. The Government invoked the clause and terminated the employment. Ms. Inniss claimed that the termination was null and void in that the Government purported to usurp the power to exercise disciplinary control over the applicant in her office of Registrar, in contravention of s 83(3) of the Constitution.7 Counsel for Ms. Inniss argued that she had

security of tenure in her employment, that she was protected by the Constitution and that her employment could not be terminated in the manner in which the Government purported so to do. At first instance the court held that the termination clause in the contract was null and void and of no effect.

7 On appeal the Court of Appeal analysed whether there had been a breach of s 83(3) of the Constitution or whether there had been only a breach of contract.8 Redhead JA focused on the finding of the trial judge that the holders of the offices specified in s 83 of the St. Christopher and Nevis Constitution9 provided a service of such importance to the public that s 83(3) provides a mechanism for their removal which lies outside the control of the Executive and such an officer could not "bargain away" by contract the protection afforded to an office holder under s 83. Redhead JA described the trial judge's language as bearing a striking similarity to that used by Byron CJ in Attorney General of Grenada v The Grenada Bar Association10 (often referred to as the Holdip case, after the name of the Director of Public Prosecutions whose employment on a fixed term contract was the subject of that litigation) and found that in relying on that decision the trial judge had erroneously elevated registrars, magistrates and crown counsel to a constitutional status equivalent to that of the Director of Public Prosecutions and of judges.

8 In theHoldip case the Attorney General had argued that the Director of Public Prosecutions, by entering into a contract for a period of two years, had waived his right to remain in office until he reached the constitutionally specified retirement age or was estopped from insisting on his right to so remain by having agreed to a fixed term appointment. The Court of Appeal concluded in the Holdip case that the office of Director of Public Prosecutions was endowed by the Constitution with the same qualities of independence as members of the judiciary and the holder of that office could not be removed from office on the basis of the effluxion of time.

9 In the Inniss case Redhead JA quoted from the speech of Lord Diplock inHinds v The Queen[1976] 2 WLR 36611 where His Lordship stated:

"The distinction between the higher judiciary and the lower judiciary is that the former are given a greater degree of security of tenure than the latter. There is nothing in the constitution to protect the lower judiciary against Parliament passing ordinary laws (a) abolishing their office (b) reducing their salaries while they are in officeor providing that their appointments to judicial office shall be only for a fixed term of years… The only protection that is assured to them by section 112 is that they cannot be removed or disciplined except on the recommendation of the Judicial Service Commission with a right of appeal to the Privy Council." (Emphasis in the quote)

10 Redhead JA found that by applying the decision in theHoldip case to the Inniss case the trial judge fell into error because the constitutional protection that the office holder enjoyed in the former was not the same in the latter. After considering the impact of the decisions in Endell Thomas v Attorney General of Trinidad and Tobago[1982] A.C. 11312 and Shrinivas Ganesh v Union of India13 on the question of removal from office Redhead JA concluded14

"… I … [have] no doubt that having regard to the decision inHinds (supra) that appointments of magistrates, registrars of the Supreme Court and other officers of [the] lower judiciary for a short or fixed term [of] years do not conflict with the constitution …"

"there was no breach of any constitutional right involving the respondent"

"In my judgment what was involved was a breach of legal contract which the respondent entered into with the Government …".15

The other members of the court concurred in the judgment of Redhead JA with Archibald JA expressly holding that the trial judge was wrong to conclude that the termination clause in the contract wasultra vires the Constitution.16

Redhead JA went on to expressly hold that

and that

11 Mr. Bennett QC, counsel for the Commission in the instant appeal, says that had the attention of Shanks J been drawn to the decision in theInniss case the learned judge would not have held that a termination of Mr. Fraser's employment amounted to a breach of his constitutional rights. Further, says the Commission, the judge would not have held that termination pursuant to the clause in the contract amounted to a removal from office within the meaning of s 91 of the Constitution and was thus void as it was not for reasonable cause. Finally, the Commission submits, the court would not have held that the Government had contravened s 91 by removing the magistrate from office when it had no power so to do. The Commission contends that it is clear from the Inniss' case that the Government had a contractual right to remove the magistrate from office by notice without having to state any cause for so doing.

12 Counsel for Mr. Fraser was unable to...