THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT...

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV 2016-01420

BETWEEN

RICKY PANDOHEE

CLAIMANT

AND

THE ATTORNEY GENERAL

OF TRINIDAD AND TOBAGO

FIRST NAMED DEFENDANT

AND

THE PRESIDENT, GENERAL SECRETARY,

FINANCE OFFICER, TRUSTEES AND MEMBERS

OF THE PRISON OFFICERS ASSOCIATION OF

TRINIDAD AND TOBAGO (SECOND DIVISION)

SECOND NAME DEFENDANT

AND

PUBLIC SERVICE COMMISSION

INTERESTED PARTY

Before the Honourable Madame Justice Margaret Y. Mohammed

Dated the 17th March 2017

APPEARANCES:

The Claimant not appearing and being unrepresented.

Ms. Corine Findley and Ms. Theophilus instructed by Ms. Laura Persad Attorneys at

law for the First Defendant.

Mr. Anthony Bullock Attorney-at-Law for the Second Defendant.

Ms. Kelisha Bello Attorney-at-Law for the Interested Party.

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REASONS

1. On the 13th December 2016 (“the order”) I struck out the Claimant’s claim against

the First Named Defendant and I ordered the Claimant to pay the First Named

Defendant’s costs to be assessed in default of agreement. I now set out my full

reasons for making the order.

2. The Claimant was enlisted in the Trinidad and Tobago Prison Service and

appointed a Prison Officer I on the 2nd August 1995. Sometime between 1995 and

2014 the Claimant acquired his Legal Education Certificate. On the 1st July 2015

the Second Named Defendant agreed to appoint and retain the Claimant as its full

time legal officer. By letter dated the 30th October 2015 the Second Named

Defendant terminated the Claimant from his position as its legal officer but the

Claimant was only served with the letter on the 21st December 2015. On the 7th

December 2015 the Claimant applied to the Commissioner of Prisons (“the

Commissioner”) for all his vacation leave of 140 days but at the time of the

institution of the instant he was not receipt of a response.

3. By letter dated the 18th January 2016 the Claimant wrote a pre-action protocol letter

to the Commissioner and copied to the Minister of Labour, the Chairperson of the

Interested Party and the Registrar General.

4. On the 28th January 2016 (“the DPA letter”) the Director of Personnel

Administration (“the DPA”) responded to the aforesaid pre-action protocol letter

which was addressed to the Commissioner. The DPA letter stated that the

Commissioner had informed the DPA that the Claimant had been absent without

official leave since the 1st October 2015 and that the Commissioner had

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recommended that the Claimant be declared to have resigned his posts in

accordance with regulation 49 of the Public Service Commission Regulations.

The DPA also indicated to the Claimant that the payment of salary and allowances

do not fall under the purview of the Service Commissions Department and that

such matters should be addressed to the Commissioner and/or the Minister of

National Security.

5. At paragraph 3 of the Statement of Case the Claimant averred that the First

Defendant is sued pursuant to the State Liability and Proceedings Act Chapter

8:02 since it is liable for acts and/or omissions by the servants and or agents of the

State including the Ministry of National Security and the Commissioner. At

paragraph 4 of the Statement of Case he averred that the Second Named

Defendant is the recognised Association to represent Prison Officers and Prison

Service Drivers under the Prison Service Act Chapter 13:02. The Claimant did not

set out the basis for joining the Interested Party.

6. In paragraphs 13 to 18, paragraphs 23 to 25 and paragraphs 39 to 45 of the

Statement of Case the Claimant alleged breaches of his expressed and implied

terms of his contract of employment by the First Named Defendant. The Claimant

also alleged constructive dismissal by the First Named Defendant at paragraphs

46 to 49 of the Statement of Case.

7. In particular at paragraph 26 of the Statement of Case the Claimant alleged that it

was an implied duty of his contract of employment between the Claimant and First

Named Defendant for the latter to pay him. At paragraph 44 of the Statement of

Case, the Claimant alleged that in breach of the First Named Defendant’s duty to

act in accordance with section 14 of the Prison Services Act and rules 5 and 20 of

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the Prison Services Regulations and rule 110(1) of the Public Service

Commission Regulations the First Named Defendant stopped paying the

Claimant his salary and has imposed a penalty not contained in the Prison

Services Act or Prison Service Regulations. At paragraph 42 the Claimant alleged

that the First Named Defendant breached its duty to pay the Claimant as an

employee his salary and allowances for December 2015, January 2016, February

2016 and March 2016.

8. The Claimant also alleged at paragraph 41 of the Statement of Case that in breach

of the First Named Defendant’s duty to act in good faith towards the Claimant as

an employee, the Commissioner failed to acknowledge that the Claimant was

seconded to the Second Defendant at least until 30th October 2015 and as such he

could not have been deemed to be absent without leave since October 2015. At

paragraph 43 of the Statement of Case the Claimant alleged that the First Named

Defendant’s agent, the Commissioner declared the Claimant absent without leave

since 1st October 2015 and recommended and/or caused the Interested Party to

commence absent without leave proceedings against him purportedly inn

accordance with regulation 49 of the Public Service Commission Regulations.

9. The Claimant alleged at paragraph 37 of the Statement of Case, that at the time of

the institution of the instant claim no disciplinary proceedings were commenced

against him and it has not been declared that he has been absent without leave.

10. At paragraph 45 of the Statement of Case the Claimant alleged that “The actions of

the First Named Defendant is procedurally incorrect and the decision is unlawful,

unreasonable, breach of natural justice and entitles the Claimant to apply for Judicial

Review.”

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11. The substantive relief which the Claimant was seeking in his Claim Form filed on

the 29th April 2016 against the First Named Defendant were:

“I. A Declaration that the conduct of the First Named Defendant through his

servants and /or agents made in December 2015 to stop payments of the

Claimant’s salary and allowances is a breach of the Claimant’s contract with

the First Named Defendant and a breach of the Public Service Regulations.

II. A Declaration that the conduct of the First Named Defendant through his

servants and/or agents made in December 2015 to stop payments of the

Claimants salary and allowances and failure of the First Defendant to

inform him of the initiation of proceedings under section 49 of the Public

Service Commission Regulations against him and to act in accordance with

the implied and express terms of contract and the Public Service Act and

the Public Service Regulations, the Prison Service Act and Regulations

amounts to a repudiatory breach of contract entitling the Claimant to deem

his contract with the First Defendant terminated.

III. Damages for constructive dismissal from such office or post on and from

the 30th day of October, 2015.

IV. Special damages for salary and allowances for the period December 2015 to

March 2016 and continuing.

V. An Order for the First Named Defendant to effect payment of all

entitlements and emoluments with retroactive effect as an employee of the

First Named Defendant.

VI. Exemplary Damages for the harsh and oppressive conduct of the First

Named Defendant in breaching the terms of the Claimant’s employment.

VII. Interest pursuant to Section 25 (1) of the Supreme Court of Judicature Act,

Chapter 4:01.

VIII. Costs.

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IX. Such further or other relief as the Honourable Court may deem just and/or

expedient.”

12. The reliefs which the Claimant is seeking against the Second Named Defendant

are:

“X. A Declaration that the conduct of the Second Named Defendant through

his servants and/or agents made in December 2015 to stop payments of the

Claimant’s allowances is void and a breach of the Claimant’s contract with

the Second Named Defendant;

XI. A Declaration that the Claimant was at material times a member of the

Second Named Defendant and entitled to the rights and privileges of

membership of the Second Named Defendant;

XII. A Declaration that the conduct of the Second Named Defendant through

his servants and/or agents made in December 2015 to exclude the Claimant

from the premises of the Second Named Defendant and in preventing him

from exercising the rights and privileges of membership is void;

XIII. Damages for wrongful dismissal as Legal Officer of the Second Named

Defendant on and from the 30th day of October, 2015 and for conspiracy and

for inducing a breach of contract by the First Named Defendant;

XIV. An injunction restraining the Second Named Defendant through its

servants and/or agents from excluding the Claimant from the Second

Defendant’s premises or preventing him from exercising the rights and

privileges of membership;

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XV. An Order for the First Named Defendant to effect payment of all

entitlements and emoluments with retroactive effect;

XVI. Special damages for allowances for the months August 2015 and September

2015 and the period December 2015 to March 2016 and continuing;

XVII. Exemplary Damages for the harsh and oppressive conduct of the Second

Named Defendant in breaching the terms of Claimant’s contract and

unlawful exclusion;

XVIII. Interest pursuant to Section 25 (1) of the Supreme Court of Judicature Act,

Chapter 4:01;

XIX. Cost;

XX. Such further or other relief as the Honourable Court may deem just and/or

expedient.”

13. On the 28th July 2016 the First Named Defendant filed an application (“the

application”) seeking to strike out the Claimant’s Claim Form and Statement of

Case pursuant to Part 26.2(1)(c) of the Civil Proceedings Rules 1998, as amended

(“the CPR”) on the basis that the Statement of Case disclosed no grounds for

bringing a claim against the First Named Defendant. It also asked that the

Claimant’s Claim Form and Statement of Case be struck out pursuant to Part

26.2(1)(b) of the CPR as it constituted an abuse of the process; or in the alternative,

that the First Named Defendant be granted an extension of time for filing its

Defence pending the hearing and determination of the application and that the

Claimant do pay to the First Named Defendant the costs of this application, to be

assessed in default of agreement.

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14. The grounds of the application were:

i. The First Named Defendant is not the employer of the Claimant and there

exists no contract of employment between the First Named Defendant its

servant/agents and the Claimant.

ii. The alleged decision of the Commissioner and/or the Interested Party

naturally involve public law issues which the Claimant has not challenged.

iii. Complaints of breach of the rights of natural justice are properly brought in

the context of judicial review proceedings and not tort proceedings; and

iv. The remedies sought cannot be obtained against the First Named

Defendant as the alleged decision of the Commissioner and/or the

Interested Party has not been set aside.

v. There is therefore no cause of action disclosed on the pleadings as the

Claimant has no viable claim for breach of contract given these

circumstances.

vi. The Claimant’s claim is therefore misconceived as it ought to have been

brought as a judicial review and not as an action for breach of an

employment contract. This course of action is an abuse of the process of the

Court, as a result of which these proceedings must be dismissed.

vii. There are no grounds for defending this claim as the Claimant on his own

pleading has abandoned his work.

15. In support of the application Counsel for the First Named Defendant submitted

that the claim as pleaded by the Claimant contains allegations against the Second

Named Defendant and the Interested Party. However, there is no nexus between

the First Named Defendant and the Claimant since the latter has not pleaded that

the First Named Defendant is responsible for the actions of the Commissioner

Further the relief which the Claimant is seeking against the First Named

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Defendant is he is challenging decisions of the Commissioner and the Interested

Party. There has been no abandonment proceedings brought by the Interested

Party against the Claimant. Even if the Claimant had been declared to have

abandoned his job, abandonment is not a dismissal or termination therefore there

is no cause of action for dismissal or wrongful termination. The declarations which

the Claimant seeks against the First Named Defendant concern public law issues

and such relief are not appropriate in private law.

16. The hearing of the application was scheduled for 10:45 am but when the matter

was called at 11:01 am Counsel for the Claimant was not present and there was no

explanation for his absence. He appeared later in the day after I had made the

order.

17. The Court’s power to strike out a statement of case is set out in Part 26.2 (1) of the

CPR which states:

1. “The court may strike out a statement of case or part of a statement of case

if it appears to the court:

a. that there has been a failure to comply with a rule, practice

direction or with an order or direction given by the court in the

proceedings;

b. that the statement of case or the part to be struck out is an abuse of

the process of the court;

c. that the statement of case or the part to be struck out discloses no

grounds for bringing or defending a claim; or

d. that the statement of case or the part to be struck out is prolix or

does not comply with the requirements of Part 8 or 10.”

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18. Abdulai Contej C.J. in Belize Telemedia Limited v Magistrate Usher1 considered

the interaction between striking out under the court’s case management powers

under Part 26 as:

“15. An objective of litigation is the resolution of disputes by the courts through trial

and admissible evidence. Rules of Court control the process. These provide for

pre-trial and trial itself. The rules therefore provide that where a party advances

a groundless claim or defence or no defence it would be pointless and wasteful to

put the particular case through such processes, since the outcome is a foregone

conclusion.

16. An appropriate response in such a case is to move to strike out the groundless

claim or defence at the outset.

17. Part 26 of the powers of the Court at cases management contains provisions for

just such an eventuality. The case management powers conferred upon the Court

are meant to ensure the orderly and proper disposal of cases. These in my view,

are central to the efficient administration of civil justice in consonance with the

overriding objective of the Rules to deal with cases justly as provided in Part 1.1

and Part 25 on the objective of case management.”

19. I decided to strike out the Claimants action against the First Named Defendant for

the following reasons.

20. Firstly, there was no cause of action for breach of contract by the First Named

Defendant as disclosed in the pleadings. The Claimant pleaded that the First

Named Defendant was the Claimant’s employer. According to paragraph 1 of the

Statement of Case the Claimant was permanently employed as a Prison Officer in

the Trinidad and Tobago Prison Service. Section 3 of the Prison Services Act sets

1 (2008) 75 WIR 138

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out the structure of the Prison Service and Section 7 of the Prison Service Act sets

out the terms and conditions of employment for Prison Officers. In essence, there

was no provision which stated that the First Named Defendant was the Claimant’s

employer.

21. Secondly, the Claimant’s complaints appeared to be against certain decisions by

the Commissioner and his cause of action if any was in public law and not tort

proceedings in private law. On the face of the averments in the Statement of Case,

it appeared to me that the Claimant’s complaints were against certain decisions of

the Commissioner and the Second Named Defendant. The Claimant’s complaints

against the Commissioner were the Commissioner’s failure to respond to his

request for 140 days’ vacation leave which the Claimant made on the 7th December

2015; the Commissioner’s decision to inform the DPA that the Claimant had been

absent without official leave since the 1st October 2015; the Commissioner’s

recommendation that the Claimant be declared to have resigned his post in

accordance with regulation 49 of the Public Service Commission Regulation; the

Commissioner’s failure to recognised his alleged secondment to the Second

Named Defendant and the Commissioner’s decision to cease payment of the

Claimant’s salary since December 2015.

22. The Claimant complaints against the Second Named Defendant were related to

the latter’s decision to terminate him from the post of Legal Officer.

23. In my opinion, if the Claimant was not satisfied with the decisions of the

Commissioner the more appropriate course would have been to seek relief in the

public law and not private law. Indeed at paragraph 45 of the Statement of Case,

referred to aforesaid, the Claimant recognised even before he filed the instant action

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that his remedies were in judicial review proceedings since his complaints were

against decisions of the Commissioner and the nature of his complaints concerned

the procedural correctness of the said decisions.

24. In any event, the relief sought by the Claimant against the First Named Defendant

cannot be obtained since any alleged decisions against the Commissioner and/or

the Interested Party have not been set aside.

25. Thirdly, even if there was a nexus between the Claimant’s complaint against the

Commissioner and the First Named Defendant, the Claimant admitted at

paragraph 37 of the Statement of Case that no disciplinary proceedings had been

commenced against him by the First Named Defendant and he has not been

declared absent without leave. Yet at paragraph 69 of the Statement of Case he

pleaded that “the abandonment proceedings by the First Named Defendant was

procedurally irregular, ultra vires, unreasonable and in breach of the rules of natural

justice.”

26. In Brian Bisnath v the Attorney General of Trinidad and Tobago2 the claimant

was a police officer who brought an action in private law for breach of contract

and wrongful dismissal since the Commissioner of Police had declared that the

said claimant had abandoned his post. Boodoosingh J in striking out the claim was

of the view that the claimant’s cause of action was not based on a contractual

relationship between the parties but on the administrative act of the Commissioner

of Police in declaring that the claimant had abandoned his office.

2 CV 2012-01599

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27. There was no pleading that a decision was made by the First Named Defendant to

declare that the Claimant had abandoned his office. The proper body to convene

those proceedings against the Claimant was the Interested Party and there was no

pleading that this process had been invoked. In this regard, any complaint by the

Claimant with respect to the recommendation by the Commissioner to the DPA

appeared to be premature and an abuse of process.

28. Lastly, the Court had the power to convert an ordinary claim to continue as one

for an administrative order under Part 56.6 of the CPR or section 13 of the Judicial

Review Act Chapter 7:08. Part 56.6 (1) provides:

“This rule applies where a claimant issues a claim for damages or other

relief other than an administrative order but where the facts supporting

such claim are such that the only or main relief is an administrative order.”

29. I did not think it was appropriate to do so in the instant case since the Claimant

intentionally abused the process of the Court by filing the instant proceedings. He

acknowledged at paragraph 45 of the Statement of Case that his remedy was in

judicial review proceedings; he acknowledged at paragraph 37 of the Statement of

Case that no disciplinary proceedings had been commenced against him and he

has not been declared absent without leave; and at paragraph 17 of the Statement

of Case he acknowledged that it was the Interested Party which is bestowed with

the power to declare an officer absent from duty under regulation 49 of the Public

Service Commission Regulations.

…………………………...

Margaret Y Mohammed

Judge

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