The Caribbean Court of Justice (CCJ) has struck out an appeal by ex-policeman Vibert Gibson against Guyana’s Attorney General but it was its comment about the delay in the case here that is likely to be of greater significance.
Handing down the ruling at the CCJ headquarters in Port of Spain, Trinidad and Tobago on September 18, 2008, CCJ President, Justice Michael de la Bastide and Justices Adrian Saunders and Desiree Bernard said that they also feel obliged to comment on the fact that the case was originally filed in July, 1989 and the High Court proceedings were not concluded until November, 2004, more than fifteen years after the case was filed.
In the written judgment they said, “Undoubtedly there must have been reasons for this but we can think of none that could justify a delay of that order. If such delays are not eliminated, public confidence in the justice system in Guyana will surely be eroded.”
In their ruling, the judges noted that Gibson was discharged from the Police Force by letter dated June 30, 1989, with immediate effect on the ground that his discharge was desirable in the public interest. He filed suit the following month against the Attorney General alleging that his removal from the force was unconstitutional, null and void. He claimed damages for loss of salary, pension and gratuity. The CCJ said he appeared to take the view that he was entitled to the total compensatory package he would have earned had he remained in the force until he reached the age of retirement and that further, the court should make no allowance for the possibility of his mitigating his loss. After a trial the High Court held that Gibson had been unlawfully dismissed. He was awarded damages equivalent to 24 months’ salary, but he appealed.
The Court of Appeal, presided over by Justices Claudette Singh, Nandram Kissoon and Ian Chang, upheld the judgment of the trial court but allowed the appeal to the extent of ordering the State to pay Gibson the pension to which he was entitled based on his 20 years service in the force. He was given leave to appeal as of right to the CCJ.
The CCJ judges in their ruling said that the facts of this case and the circumstances in which an appeal as of right was filed resembled very closely those in the case of one Mohamed Yasseen versus the Attorney General [2008] CCJ 3 (AJ) in which the CCJ delivered a written judgment on March 26, 2008.
They said that adopting the same course they followed in Yasseen, they required Gibson’s counsel, Benjamin E Gibson, to provide them with written submissions on the issue whether the appellant was entitled to appeal as of right. Those submissions were filed and having read them, they saw no reason to alter the view they took in Yasseen’s case, that there was no right of appeal and that the appeal in any event lacked merit and should be dismissed.
They said that in order to found a right of appeal, the appellant had to establish that the proceedings were “concerned with the exercise of the jurisdiction conferred upon the High Court relating to redress for the contravention of the provisions of the Constitution for the protection of fundamental rights.”
Counsel Gibson suggested that his client’s claim to be entitled to salary, pension and superannuation benefits was a claim premised on the breach of a fundamental human right. This line of argument, they said, was given a fitting response in the court below by former Justice of Appeal Claudette Singh who noted in the ruling by the Guyana Court of Appeal that: “…the action is one for unlawful dismissal and is not one in which the appellant was seeking constitutional redress for the infringement of a fundamental right. The Commissioner in discharging the appellant without a hearing has failed to observe the rules of natural justice in not affording him a hearing. Failure to observe the rules of natural justice would not amount to an infringement of a fundamental right.”
In dismissing the Gibson case, the CCJ judges referred to their judgment in Yasseen’s case which they said was equally applicable; that was that the claim in the case was not presented as a breach of a fundamental right, nor could it be seriously suggested that the appellant had a fundamental right to salary and pension as if he had continued in his post until his attainment of the relevant retirement age. The basic contention they had said was that termination was wrongful because of the Police Commissioner’s disregard of the principles of natural justice. The right to institute the action on that ground existed independently of the constitution and did not depend on, and was not concerned with, establishing the contravention of any provision of the constitution for the protection of fundamental rights. The courts below proceeded on that footing.
They had said that even if Yasseen were to allege “- and we must not necessarily be taken as supporting either of these propositions – that his right to be heard constituted a fundamental right protected by the Constitution or that his job was property the enjoyment of which was protected by the Constitution, there is no principle of constitutional law which would have required the Court, in assessing compensation due to him for breach of either or both of those assumed rights, to treat his employment as notionally continuing until his retirement age and to ignore his capacity to take up alternative employment and earn an income from it. Put another way, there is no basis in principle or in decided cases for treating the policy which the courts have traditionally followed of not ordering specific performance of contracts of service as inapplicable to a contract of service which has been terminated in breach of a fundamental right protected by the Constitution.”
