Stephen Edwards Appellant v Attorney General of Guyana The Public Service Commission Respondents

JurisdictionCaribbean States
CourtCaribbean Court of Justice (Appellate Jurisdiction)
JudgeNelson, Wit, Hayton, The Honourable Mr. Justice Rolston Nelson, The Honourable Mr. Justice David Hayton, Mr. Justice Pollard, Mr Justice Michael de la Bastide, PCCJ, Nelson JCCJ, Wit JCCJ, Hayton, JCCJ
Judgment Date16 Dec 2008
Neutral Citation[2008] CCJ 10 AJ
Docket NumberCCJ Appeal No. CV 3 of 2007

[2008] CCJ 10 (AJ)

IN THE CARIBBEAN COURT OF JUSTICE

Appellate Jurisdiction

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

Before

The Right Honourable and the Honourables

Mr Justice de la Bastide, President

Mr Justice Nelson

Mr Justice Pollard

Mr Justice Wit

Mr Justice Hayton

CCJ Appeal No. CV 3 of 2007

GY Civil Appeal No. 77 of 2003

Between
Stephen Edwards
Appellant
and
The Attorney General of Guyana
The Public Service Commission
Respondents
Appearances

Mr Roopnarine Satram, Mr Chandraprakesh SatramandMr Mahendra Satram Attorneysfor the Appellant

Mr Vashist Maharaj and Ms Sueanna David Attorneys for the Respondents

JUDGMENT of The President and Justices Nelson, WitandHaytonDelivered jointly byThe Honourable Mr. Justice Rolston NelsonandThe Honourable Mr. Justice David Haytonon the 16 th day of December 2008 and JUDGMENT of the HonourableMr. Justice Pollard

Hayton, JCCJ

JUDGMENT OF THE RIGHT HONOURABLE Mr Justice Michael de la Bastide, PCCJ AND THE HONOURABLE JUSTICES Nelson JCCJ, Wit JCCJAND

Introduction
1

This is an appeal from a judgment of the Court of Appeal of Guyana (C. Singh, Kissoon and Chang JJ.A.) delivered orally on March 22, 2007. The Court of Appeal dismissed that appeal and affirmed an order of Jainarayan Singh J made on November 14, 2003 on the ground that constitutional proceedings brought some twenty years after termination of the appellant's employment constituted unreasonable delay and were an attempt to abuse the process of the court. The Court of Appeal subsequently granted the appellant leave to appeal to this Court without specifying any particular ground for this. However, the Appellant's then counsel subsequently wrote to the Caribbean Court of Justice advising that leave had been granted under section 6(d) of the Caribbean Court of Justice Act, No. 16 of 2004. This permits appeals as of right where the High Court has special jurisdiction under Article 153 of the Constitution for the protection of fundamental rights within Articles 138–151. After hearing full argument on this appeal this Court agrees with the courts below that the appeal should be dismissed for the reasons set out hereunder.

The facts
2

Stephen Edwards, the Appellant, held the position of Acting Deputy Registrar-General of Births and Deaths in 1980. On March 28, 1980 he was charged summarily with accepting $50.00 from a member of the public as a reward for supplying two certified extracts from the Register of Births and Deaths contrary to section 105(2)(a) of the Summary Jurisdiction (Offences) Act, Cap 8:02. On January 20, 1981 a magistrate dismissed the charges against the Appellant.

3

By letter dated September 28, 1981 the Appellant was notified that he had been dismissed from the Public Service with effect from September 19, 1981. The dismissal of the Appellant took place without affording him a prior hearing. No reason for the dismissal was given by the Public Service Commission.

4

Some seven (7) years later the Appellant by writ of summons dated July 7, 1988, accompanied by a Statement of Claim, sued the Attorney-General and the Public Service Commission in respect of his dismissal. We shall refer to these proceedings as “the first action”. Harper J. dismissed the first action on the ground that it was statute-barred.

5

In the first action the Appellant treated his employment as automatically terminated by the dismissal letter of September 28, 1981 and no longer subsisting. Indeed, the Appellant at paragraph 8 of the Statement of Claim states:

“The Plaintiff no longer wish (sic) to be employed by Public Service Commission”.

6

It is to be noted that by paragraph 7 of the Statement of Claim in the first action the Appellant pleads but does not claim the loss of his gratuity and pension rights. Having regard to his summary dismissal this head of loss could only have referred to such superannuation benefits as had accrued as at the date of his dismissal. In the first action the Appellant claimed (1) a declaration that his dismissal was unconstitutional and (2) damages for wrongful dismissal. Mr. Gibson for the Appellant/Plaintiff abandoned his claim for damages and pursued only the claim for a declaration. It appears that the limitation point was taken in limine as a preliminary point before Harper J. The Court of Appeal rejected Harper J's ruling that the claim was statute-barred and ordered a retrial.

7

At the retrial on December 6, 1996 Burch-Smith J held that the delay of six and a half years in launching the action was unreasonably long and an abuse of the process of the court, especially since the Appellant, whose substantive post was Clerk of the Court, was no stranger to the law, lawyers and the courts. He added that the Appellant never sought to explain his delay. The claim was dismissed with costs. On June 24, 2000 the Court of Appeal upheld the judgment of Burch-Smith J.

8

On August 8, 2001 the Appellant commenced a second action (“the second action”) by a Notice of Motion relying on Articles 40, 142, 144, 214 and 215 of the Constitution claiming:

  • (a) A declaration that the applicant was compulsorily retired from the Public Service on the 19 th day of November, 1980 (sic).

  • (b) An Order directing the payment to him of the sum of $200,289.00 (two hundred thousand, two hundred and eighty nine dollars).

  • (c) An order directing the payment to him of such sum due to him by way of superannuation as ex gratia (sic) payment and pension.

  • (d) Costs.

9

The following questions arise: (1) whether the second action seeks any relief that could not have been claimed in the first action and (2) whether the second action is not defeated by the delay of twenty years in instituting it.

Nature of relief sought in second action
10

Counsel for the Appellant contended that the dismissal of the Appellant without a hearing and without reasons should be treated as a compulsory retirement within the terms of section 8(c) of the Pensions Act Cap. 27:02, which provides:

“8. No pension, gratuity or other allowance shall be granted to any officer except on his retirement from the public service in one of the following cases –

  • (a) on or after attaining the age of fifty-five years or, in special cases with the approval of the Minister on or after attaining the age of fifty years or, in special cases as mentioned in the proviso to section 11, or in the case of transfer to other public service on or after attaining the age at which an officer is permitted by the law or regulations of the service in which he is last employed to retire on pension or gratuity or on or after attaining the age of fifty-five years whichever is earlier;

  • (b) on the abolition of his office; or

  • (c) on compulsory retirement for the purpose of facilitating improvement in the organization of the department to which he belongs by which greater efficiency or economy can be effected; or

  • (d) on medical evidence to the satisfaction of the Minister that he is incapable by reason of some infirmity of mind or body of discharging the duties of his office and that such infirmity is likely to be permanent; or

  • (e) on termination of employment in the public interest as provided in this Act:…”

11

Counsel's attention was drawn to the very terse terms of the letter of dismissal of September 28, 1981, which expressly refers to termination by dismissal as opposed to termination by reason of compulsory retirement for the purpose of “facilitating improvement in the organization of the department”. Ultimately, counsel conceded that the court could not deem the dismissal of the Appellant to be “a compulsory retirement” in the absence of any evidence of any compulsory retirement for the purposes delineated at paragraph 8(c) of the Pensions Act Cap. 27:02.

12

As to the claim for the payment of $200,289.00, counsel for the Appellant frankly admitted that he was unable to assist the Court as to the nature of this claim or as to what it constituted. At the end of the day counsel abandoned this claim. One may note that if counsel who originally drafted this claim had intended this to cover damages for wrongful dismissal, this had been raised and abandoned in the first action.

13

The final subsisting claim in the second action was an order for “superannuation by way of ex gratia payment and pension”. Although it was difficult to conceive of an order to make a discretionary payment of superannuation benefits, it is clear that a mandatory order for the payment of superannuation benefits accrued at the date of dismissal could have been made in the first action, if (which seems unlikely) a case within section 8 of the Pensions Act had been established. In any event, no claim for accrued pension benefits i.e. pension benefits already earned was made in the first action as noted at [6] above. The Appellant therefore has not established an entitlement to any accrued pension or superannuation benefits under the Pensions Act.

14

Counsel for the Appellant next contended that since an order on the constitutional motion in the second action would make the dismissal a nullity, the Appellant would be entitled to be treated as if he continued to be employed up to the normal retirement date of July 31, 1990, with the result that the Appellant could properly claim all his superannuation benefits as if he had worked until retirement.

15

We are conscious of the dual dimension of the public employment relationship i.e. the public law and the private law elements. The notion taken from public law that a dismissal may be a nullity presents problems in terms of the relief appropriate in a case where a considerable period of time numbered in years has passed since dismissal during which the employee has performed no services for the employer. One possible approach is to say that the consequences of such nullity must vary “according to the facts of the particular case”, including whether the...

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