THE REPUBLIC OF TRINIDAD & TOBAGO IN THE HIGH...

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THE REPUBLIC OF TRINIDAD & TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No: CV2018-02526

IN THE MATTER OF AN APPLICATION BY

NIRMAL RAMLAL (REGIMENTAL NUMBER 12258)

FOR AN ADMINISTRATIVE ORDER UNDER PART 56 OF

THE CIVIL PROCEEDINGS RULES 1998

AND

IN THE MATTER OF THE UNFAIR TREATMENT AND/OR UNEQUAL

TREATMENT OF THE APPLICANT/CLAIMANT IN BREACH OF HIS RIGHT

AND/OR LEGITIMATE EXPECTATION TO BE AWARDED 35 POINTS IN LIGHT

OF HIS GRADE THREE (3) IN ENGLISH LANGUAGE AT CXC FOR THE PURPOSE

OF BEING EVALUATED AND/OR CONSIDERED FOR PROMOTION TO THE

RANK OF POLICE SERGEANT

AND

IN THE MATTER OF THE VIOLATION OF THE CLAIMANT’S CONSTITUTIONAL

RIGHT TO EQUALITY OF TREATMENT FROM A PUBLIC AUTHORITY IN THE

EXERCISE OF ITS FUNCTIONS UNDER SECTION 4(d) OF THE CONSTITUTION

OF THE REPUBLIC OF TRINIDAD AND TOBAGO ACT NO. 4 OF 1976

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BETWEEN

NIRMAL RAMLAL

(REGIMENTAL NUMBER 12258)

Claimant

AND

THE COMMISSIONER OF POLICE

First Defendant

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Second Defendant

Before the Honourable Mr Justice Ronnie Boodoosingh

Appearances:

Mr Anand Ramlogan SC leading Mr Gerald Ramdeen and Mr Douglas Bayley

instructed by Ms Alana Rambaran for the Claimant

Ms Keisha Prosper and Ms Rachael Jacob instructed by Ms Andella Ramroop

and Ms Avaria Niles for the Defendants

Date: 5 August 2020

JUDGMENT

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1. The claimant in this matter is a police officer who at the time of filing

this claim on 16th July 2018, was a Police Corporal but who held an

Acting Sergeant post since 2013. This is a mixed claim. He is seeking

declarations and an order of mandamus via judicial review against the

defendants. He also seeks declarations and compensation for breaches

of his constitutional rights under section 4(d) of The Constitution of

Trinidad and Tobago Chap 1:01 (the Constitution). In 2005, he wrote

the promotion examinations for the rank of Sergeant. He seeks to

review the decision of the Commissioner of Police for not awarding the

correct marks for his examinations which delayed his promotion.

Consequently, he claims that his constitutional rights were violated by

being treated unfairly.

2. The process for promotion is governed by Section 20(1) of the Police

Service Act Chap. 15:01, which provides:

20. (1) To be eligible for promotion to the rank of Corporal

through to Inspector, a police officer from the rank of Constable

through to Sergeant is required to pass a qualifying

examination.

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3. The process for promotion in the Second Division is guided by

Regulation 20 of the Police Service Regulations contained in the Police

Service Act (supra):

20. (1) Subject to subregulation (2), the Promotion Advisory

Board shall interview—

(a) an officer who has passed the qualifying examination

for promotion and is recommended for promotion by

the officer in charge of his Division or Branch;

(b) an officer who was allocated fifty or more points at

the previous interview; and

(c) an officer who is eligible under subregulation (3).

(2) An officer shall not be interviewed by the Board

unless he has been allocated forty or more points by the

Board based on the criteria, other than the interview,

listed in subregulation (5).

(3) Subject to subregulation (2), an officer who is

allocated less than sixty points is eligible to be

interviewed at the next sitting of the Board.

(4) Every officer considered for promotion shall be rated

according to the criteria specified in subregulation (5)

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and each officer who is allocated sixty or more points

shall be placed on an Order of Merit List.

(5) The criteria mentioned in subregulation (4) shall be

as follows:

(6) The Board shall submit the Order of Merit List to the

Commissioner, who shall cause it to be published in a

Departmental Order.

CRITERIA

MAXIMUM POINTS

Performance Appraisal

40

Interview

25

Examination

35

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4. The process and award of points were set out in Departmental Order

No. 211/07 dated 20th November 2007. Parts 3:4, 3:5, 3:6 and 3:8:1 of

that Departmental order provides:

3:4 Every officer considered for promotion shall be rated

according to the criteria specified in 3:5 and each officer who is

allowed-sixty or more points shall be placed on an Order of

Merit List.

3:5 The criteria mentioned in 3:4 shall be as follows:

3:6 At the conclusion of each sitting of the Board, the Chairman

shall submit to the Commissioner the Board's recommendation

in the form of an Order of Merit List.

CRITERIA

MAXIMUM POINTS

Performance Appraisal

40

Interview

25

Examination

35

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3:8:1 Officers in the Second Division who have successfully

passed the qualifying examination in English Language shall be

awarded the following points:

CXC

GCE O' LEVEL

POLICE

ENGLISH

POINTS

AWARDED

1 A, O 80-100

35

2 B 60-79

30

3 C 50-59

25

5. Subsequently, there were amendments to paragraphs 3:8:1 to 3:8:4 of

Departmental Order No. 211/07 by Departmental Order No. 213/07

dated 29th November 2007. Specifically, Part 3:8:1 stated the following

with regard to the English Language examination:

Officers in the Second Division who have successfully passed the

qualifying examination in English Language, or who have been

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exempted from writing the qualifying examination in English

Language shall be awarded 35 points.

6. In November 2015, interviews were held for the post of Sergeant. He

was successful at that interview. On 21st April 2016, a Merit List (initial

list) was published via Departmental Order No. 50, by the

Commissioner of Police ranking the Police Corporals who sat the

examinations. This list contained the names of all those police officers

who had been interviewed between November 2015 and January 2016.

7. The claimant received a copy of the list on 24th April 2016 and saw that

he was placed at position five hundred and eighty-one (581). He was

not aware of the score he received in the examination category.

8. Promotions for the rank of Sergeant were held on 24th April 2016 and

21st December 2016 for Police Corporals from positions 1 -462 and 463-

488 respectively. Therefore, he was not promoted on either occasion.

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9. A revised Merit List (revised list) was published on 14th August 2017 via

Departmental Order No. 95 dated 21st April 2016, which replaced the

initial list, Departmental Order No. 50. The claimant was told about the

revised list three days after its publication. On the revised list, he saw

that his position was 359. Upon inquiry he was told that the revisions

to the initial list were made because of an administrative error.

10. The claimant pleaded that because of this error he was not awarded

the correct number of points for the examination. Therefore, he should

have been promoted on 24th April 2016.

11. Promotions were to be made on 29th August 2017. He was contacted

by the Office of the Commissioner of Police in late August to receive a

promotion letter to the rank of Sergeant. But at a meeting with Human

Resources personnel, he was informed that the “hands of the

Commissioner are tied” because of an injunction filed by certain police

officers in the court matter of Audie Alexander Mona v the Acting

Commissioner of Police CV 2017-03141. This injunction prevented the

Commissioner of Police from promoting the claimant and other officers

from Corporal to Sergeant.

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12. He subsequently learned of a similar situation involving another police

officer named Mr Billy Ramsundar who brought a matter against the

Commissioner of Police, Billy Ramsundar v The Commissioner of Police

and The Attorney General of Trinidad and Tobago CV 2017-00149.

Despite queries he could not get detailed information regarding the

matter only that a consent order was made between the parties.

13. His further efforts to resolve the matter with the Office of the

Commissioner of Police were not successful.

14. He decided to find out the actual score he obtained at the examination

but was told by staff of the Office of the Commissioner of Police that

he would need to make a Freedom of Information Application (FOIA).

15. He sought legal counsel and sent a FOIA request to the Commissioner

of Police on 22nd February 2018 requesting, inter alia, scores in each of

the courses he wrote and the names of those officers who received a

maximum 35 points.

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16. Up until the filing of this matter in July 2018, he had not received a

response. Additionally, he received no word from the Office of the

Commissioner of Police regarding his promotion.

17. The error meant that he was not promoted on two occasions. Had the

initial promotion been made he would have maintained his seniority.

As a consequence, further acting appointments, opportunities or

promotions were not available to him. Therefore, his career

advancement was affected.

18. He further states that he had a legitimate expectation that he would

have been correctly placed on the initial list. This legitimate expectation

was breached when the Commissioner of Police failed, refused, or

unreasonably delayed his promotion.

19. Officers on the initial list who were similarly placed, that is, those who

wrote the examination and were interviewed, were awarded the

correct points in having either passed the Police English examination or

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possessed a grade one in English Language. He therefore believes that

he was treated unfairly or unequally by the Commissioner of Police.

20. The defendants acknowledged that an error was made in the scoring

process via Departmental Order No. 95 published on 14th August 2017.

Promotions were scheduled for the 29th August 2017, but as a result of

an injunction in the matter of Audie Alexander Mona (supra) the

Commissioner of Police was restrained in performing the promotion.

21. On 20th July 2018, the injunction was lifted and the claimant was

promoted to the rank of Sergeant with effect from 22nd April 2016.

Issues

1) Whether there can be a joint claim for judicial review and constitutional

relief.

2) Whether the Attorney General is the proper party to the proceedings.

3) Whether the claimant had a legitimate expectation of being awarded

the correct points in the examination category and therefore, should

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an order for mandamus be given directing the Commissioner of Police

to promote the claimant to the rank of Sargent with retroactive effect.

4) Whether the Commissioner of Police violated the claimant’s rights to

equality of treatment by a public authority under section 4(d) of the

Constitution (supra) by not placing him correctly on the initial list.

5) Whether compensatory and/or vindicatory damages are appropriate in

this matter.

Issue 1

22. The claimant submitted that Part 56 of the Civil Proceedings Rules

(CPR) 1998 (as amended) provided for mixed claims. That part

provides:

56.1 (1) This Part deals with applications—

(a) for judicial review (which includes mandamus,

prohibition and certiorari);

(b) by way of originating motion under s.14(1) of the

Constitution;

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56.9 (1) The general rule is that, where permitted by the

substantive law, the applicant may include a claim for any other

relief or remedy that arises out of or is related or connected to

the subject matter of an application for an administrative order.

(2) The court may, however, at any stage—

(a) direct that any claim for other relief be dealt with

separately from the application for an administrative

order; or

(b) direct that the whole application be dealt with as a

claim and give appropriate directions under Parts 26 and

27; and,

(c) in either case, make any order it considers just as to

costs that have been wasted because of the

unreasonable use of the procedure under this rule.

23. The claimant also submitted excerpts from the case of Thakur Persad

Jaroo v The Attorney General of Trinidad and Tobago [2002] 1 AC and

Damian Belfonte v The Attorney General of Trinidad and Tobago C.A.

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No 84 of 2004 to support the submission. In Jaroo (supra) at paragraph

36 the court stated:

36) Their Lordships wish to emphasise that the originating

motion procedure under section 14(1) is appropriate for use in

cases where the facts are not in dispute and questions of law

only are in issue. It is wholly unsuitable in cases which depend

for their decision on the resolution of disputes as to fact.

Disputes of that kind must be resolved by using the procedures

which are available in the ordinary courts under the common

law.

24. In Damian Belfonte (supra) at paragraphs 18 and 19:

18) What is evident from Jaroo and other similar cases is that

the determining factor in deciding whether there has been an

abuse of process is not merely existence of a parallel remedy

but also that the pursuance of the application to the High Court

must be viewed as being made for the sole purpose of avoiding

the normal judicial remedy for unlawful administrative action.

…

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19) Another example of a special feature would be a case where

several rights are infringed, some of which are common law

rights and some for which protection is available only under the

constitution. It would not be fair, convenient or conducive to

the proper administration of justice to require an applicant to

abandon his constitutional remedy or to file separate actions for

the vindication of his rights.

25. Therefore, they submitted that the CPR allows for mixed claims in

instances where the circumstances reveal that there is a claim against

a public authority and additionally a violation of constitutional rights.

26. In further support of this proposition, the claimant submitted the case

of Pamela Hunt v Jennifer Daniel, Permanent Secretary in The

Ministry of Education CV 2014-02496 at paragraphs 33 and 34:

Mixing of constitutional relief with judicial review proceedings:

33) The law applies equally to this issue as it does to the joining

of the private law claims. Part 56.9 of the CPR expressly allows

the joining of any other relief provided it is permitted by

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substantive law and is related or connected to the judicial

review claim. The relief in question here was sought against the

4th Defendant for denial of access of the Claimant to the School.

It was claimed that this decision contravened sections 4 (a), (b),

(d) & 5 (b) of the Constitution. The Court agrees that this relief

is related to the judicial review claim. Further, the fact that

Pamela was denied access to the school was never challenged

by the 4th Defendant as no affidavit on their behalf was ever

submitted.

34) Accordingly, pursuant to Part 56.9 (1) of the CPR, the Court

sees no difficulty in joining this constitutional relief to the

judicial review claim.

27. The claimant submitted that section 20 of the Supreme Court of

Judicature Chap. 4:01 allows for multiplicity of claims. That section

provides:

20. The High Court and the Court of Appeal respectively in the

exercise of the jurisdiction vested in them by this Act and the

Constitution shall in every cause or matter pending before the

Court grant, either absolutely or on such terms and conditions

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as to the Court seems just, all such remedies whatsoever as any

of the parties thereto may appear to be entitled to in respect of

any legal or equitable claim properly brought forward by him in

the cause or matter, so that, as far as possible, all matters in

controversy between the parties may be completely and finally

determined, and all multiplicity of legal proceedings concerning

any of those matters avoided.

28. Part 56.9 of the CPR allows for certain courses of action for a mixed

claim. If leave is not granted, the court can direct the applicant to file a

fixed date claim form in relation to constitutional relief, or commence

the application for leave as a fixed date claim and proceed as one for

constitutional relief only. To support the point, they submitted the case

of Akili Charles v Her Worship Maria Busby Earle-Caddle, The Acting

Chief Magistrate CV 2017-03707 at paragraph 60, where Rampersad J

allowed the claims in constitutional relief as it did not affect the

permission for leave in judicial review:

60) With respect to the claims made for constitutional relief,

those claims are not subject to any application for permission

or leave and therefore the court will allow the claimant to

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proceed to include those reliefs in the fixed date claim form

until such time as they may be struck off under the existing and

pending application by the second respondent.

29. The claimant highlighted a number of cases where mixed claims were

brought but no opposition was made to strike out any of the claims;

these cases include: BS (by his kin and next friend KM) v Her Worship

Magistrate Marcia Ayers-Caesar CV 2015-02799/CV 2015-02944 and

the Commissioner of Prisons et al v Sasha Seepersad et al CA CIV S093

of 2017, CA CIV P094 of 2017, CA CIV P218 of 2016, CA CIV S219 of

2016, CA CIV P223 of 2016, CA CIV S224 of 2016.

30. An excerpt from the case of Motilal Ramsingh v Eric James (in his

capacity as The Permanent Secretary in the Ministry of Local

Government CV 2015-00713 at paragraph 19, a judgment by Rahim J,

also provided support to the proposition:

19) Orders sought under Part 56 CPR are defined as

Administrative Orders whether they encompass applications for

Judicial Review or Claims for relief pursuant to the Constitution

or both. Where the claim is one for Constitutional relief, the

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Attorney General must be made a party to the proceedings. By

virtue of Part 56.10 (4), where the Attorney General is not a

party to the Claim, which would by virtue of the nature of both

types of claim may be a claim for Judicial Review (in some

cases), a duty lies on the Claimant to serve the proceedings on

the Attorney General. In this case it is patently clear that the

Attorney General ought not to have been joined as a party. The

submission of the Claimants that he was so joined ex abundante

causa simply has no basis in law.

31. The case of Antonio Webster v The Attorney General of Trinidad &

Tobago [2011] UKPC 22 at paragraphs 12 and 13, also had useful

learning in support of the claimant’s submission:

12) But the appellant made his claim in Form 1. He contends

that he was correct to do so. He rightly asserts that the

applications for administrative orders included in the claim did

not represent the "only or main" relief sought in the claim – on

any view the main relief sought was damages in tort – with the

result that Rule 56.6, which there is no need to set out, did not

govern the procedure to be adopted. But his assertion that, in

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circumstances in which his main claim was for damages in tort,

it was correctly made in Form 1 is belied not only by the rules

set out in [10] above but also by Rule 56.9, which provides as

follows:

"(1) The general rule is that, where permitted by the

substantive law, the applicant may include a claim for

any other relief or remedy that arises out of or is related

or connected to the subject matter of an application for

an administrative order.

(2) The court may, however, at any stage -

…

(b) direct that the whole application be dealt

with as a claim and give appropriate directions

under Parts 26 and 27; and…"

13) It is clear that the appellant was wrong to make his claim in

Form 1. He should have made it in Form 2, as a fixed date claim,

and have applied to the court under Rule 56.9(2)(b) for a

direction that the whole application be dealt with as a claim and

for directions for the filing of affidavits or witness statements,

for the attendance of their makers for cross-examination if

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appropriate and for disclosure etc under Part 26. The Board

does not accept the Attorney General's submission – which is

not reflective of the treatment of the rule by the Court of Appeal

– that Rule 56.9 applies only to claims wrongly made as a fixed

date claim in Form 2.

32. The claimant submitted that based on the learning in Webster (supra),

the court held that a legitimate mixed claim is possible, a common law

claim coupled with constitutional breaches. If this is the case then the

CPR provides Form 2 should be used, a fixed date claim form. However,

in Webster (supra), Form 1 was used for ordinary claims. This still was

not fatal to the claim as under Part 56.9(2)(b), the court could have

given the necessary directions. The fatal element in Webster’s (supra)

case however was that there was an alternative remedy in common

law.

33. Therefore, the claimant is seeking under the judicial review claim

declarations and orders for mandamus directing the Commissioner of

Police to promote him and to adjust his scores. Whilst under the

constitutional claim, they submit that the claimant has a genuine claim

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for violation of his constitutional rights. Based on the authority of Jaroo

(supra), Webster (supra) and Belfonte (supra), a mixed claim can

proceed.

34. Regarding the first issue, the defendants submitted that Part 56 must

be read rigorously. Alongside Part 56.1(1), under Part 56.7(2) the CPR

provides:

56.7(2) The claim form in an application under section 14(1) of

the Constitution shall serve as the originating motion

mentioned in that section and shall be headed “Originating

Motion”.

35. A party filing a claim under this part must include, inter alia, the grounds

on which any relief is sought as well as the facts which the claim is based

as provided under Part 56.7(4)(d) and (e). Case law and the facts

subsequently provides the court with the material to make a

determination of whether discrimination can be upheld.

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36. Under the Judicial Review Act Chap. 7:08, section 8(1) outlines the

various forms of relief that a court can grant for judicial review

proceedings while under section 15 provides for a remedy where a

public body delays in making a decision:

8. (1) On an application for judicial review, the Court may grant

the following forms of relief:

(a) an order of mandamus, prohibition or certiorari;

(b) a declaration or injunction;

(c) an injunction under section 19; or

(d) such other orders, directions or writs as it considers

just and as the circumstances warrant.

15. (1) Where—

(a) a person has a duty to make a decision to which this

Act applies;

(b) there is no law that prescribes a period within which

the person is required to make that decision; and

(c) the person has failed to make that decision,

a person who is adversely affected by such failure may file an

application for judicial review in respect of that failure on the

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ground that there has been unreasonable delay in making that

decision.

37. The defendants submitted that the claimant did not reveal the facts of

which his claim is based. They submitted the case of Attorney General

of Trinidad and Tobago v Ravi Jaipaul at paragraphs CA CIV 35 of 2011,

paragraphs 45 – 48:

45) Equality is a comparative concept. In a constitutional setting

not all differential treatment would be discriminatory. The

concept is neither Orwellian nor Utopian. Rather, the

constitutional right to equality before the law connotes the

right to equal treatment with others in similar circumstances. In

Bhagwandeen v Attorney General Lord Carswell propounded

the test for inequality of treatment:

"A claimant who alleges inequality of treatment or its

synonym discrimination must ordinarily establish that

he has or would be treated differently from some other

similarly circumstanced person or persons, described by

Lord Hutton in Shamoon v Chief Constable of the Royal

Ulster Constabulary [2003] 2 All E R 26 at paragraph 71

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as actual or hypothetical comparators. The phrase which

is common to the anti-discrimination provisions in the

United Kingdom is that the comparison must be such

that the relevant circumstances in the one case are the

same or not materially different in the other."

Onus of proof

46) In formulating a two-stage approach to the onus of proof,

both Mendonca JA and Jamadar JA relied in Graham on the

Privy Council decision of Bishop of Roman Catholic Diocese of

Port Louis v Tengur. In Tengur the court held that the giving of

preference to one group of applicants (Roman Catholic pupils)

necessarily worked to the disadvantage of any group of

applicants to whom preference was not given. Such

differentiation, however, did not necessarily amount to

discrimination. The differentiation of which the father of an

eleven-year old Hindu child complained, appeared to be

discriminatory since it was based on creed, a ground prohibited

under the Mauritian Constitution. Lord Bingham referred to

authorities from several jurisdictions including the Strasbourg

court in propounding what was required to be proved in

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establishing discrimination: "Where apparently discriminatory

treatment is shown, it is for the alleged discriminator to justify

it as having a legitimate aim and as having a reasonable

relationship of proportionality between the means employed

and the aim sought to be realised."

47) In Graham Mendonca JA propounded the following:

"Given the current state of the law, it is arguable that an

applicant who alleges a breach of his section 4(d) right

need only show that he was treated less favourably than

one similarly circumstanced. It is for the public authority

to justify the difference in treatment on some legitimate

or reasonable basis."

48) In that same matter, Jamadar JA asserted:

"I therefore remain convinced, that in order to establish

a section 4(d) breach of the Constitution all that is

required is proof by an aggrieved party that he was less

favourably treated than other similarly circumstanced

persons and/or that they were more favourably treated

than he was. This determination is to be undertaken by

a court on a consideration of all of the evidence, both of

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the claimant and of the respondent. The duty of all

parties is of candour. The presumption of bona fides is

facilitative of full disclosure by a public authority which

has nothing to hide and is genuinely interested in

accountability and transparency and in achieving good

public administration. Once a prima facie case of the

violation of the right to equality of treatment is raised,

the onus shifts to the public authority to explain and

justify its decision and to show that there is no breach of

the right...."

38. They also submitted learning from the case of Fidelity Finance and

Leasing Company Limited et al v His Worship Sherman McNicolls and

The Director of Public Prosecutions CV 2008-1228 paragraphs 58 – 59:

Breach of constitutional rights

58) The claimants in CV 2008 – 1228 and 1269 allege that their

rights to a fair hearing and to due process have been breached.

They file no separate constitutional action. The right to seek

constitutional relief is a right specifically provided for by section

14(1) of the Constitution. In this case the claimants appear to

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raise the alleged breach as a ground of judicial review. Part

56.7(1) of the CPR provides specifically for the manner in which

an administrative order must be made, identifying whether the

application is by way of judicial review or under section 14(1).

Moreover, Part 26.7(2) also provides for the manner in which a

constitutional motion is to be pleaded. Nothing of the kind has

been done in this case. Rather, the applications all purport to be

by way of judicial review with the alleged constitutional

breaches thrown in as an afterthought.

59) In my judgment, Part 56.7(1) and Part 26.7(2) of the CPR are

drafted in recognition of the fact that judicial review

proceedings and constitutional motions are separate processes.

Judicial review is directed at abuse of power and unfairness in

the public administrative process. Constitutional motions are

concerned with substantive rights and are far more

comprehensive in scope. Where there is overlap, judicial review

proceedings should be pursued especially where this is

adequate enough to right any wrong committed. This is

consistent with the directions of the Privy Council in Attorney

General of Trinidad and Tobago v Ramanoop 2005 UKPC 15 at

337 that a constitutional relief should summarily not be sought

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where a parallel public law remedy exists (except for the

existence of some special feature which compels the bringing of

a constitutional motion).

39. The defendants submitted that judicial review considerations are

different from considerations in a constitutional motion and based on

the learning in Fidelity Finance (supra) the claimant did not establish

an evidential basis in his affidavit to show discrimination as alleged. It

did not show that similarly circumstanced persons were more

favourably treated than him.

40. The defendant says he has not specifically identified comparators, that

is, persons who were similarly circumstanced that would place his claim

as a genuinely constitutional claim. The persons whom the claimant use

as comparators who passed the English Language course and were

awarded 35 points were not similarly circumstanced as they were

awarded the correct points. Since the claimant does not have a proper

constitutional claim, this is therefore a claim in judicial review. Relief

under judicial review as provided under the Judicial Review Act (supra),

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has appropriate forms of relief for delays in decision-making by a public

authority.

41. Even if the comparators chosen by the claimant can be seen as proper

comparators, assessing the allegation of discrimination should focus on

the reason for treatment rather than on choice of comparators as in

the case of Shamoon v Chief Constable of the Royal Ulster

Constabulary [2003] 2 All ER 26. Therefore, the alleged constitutional

breaches were thrown in as an adjunct to the judicial review claim

which can be dealt with by the court.

42. Additionally, as in the case of Attorney General of Trinidad and Tobago

v Ramanoop 2005 UKPC 15, constitutional relief must not be sought

where a parallel remedy exists unless some special feature exists.

43. The claimant responded to these submissions of the defendants. The

claimant highlighted that the defendants accepted a mixed claim is

possible. Additionally, the claimant buttressed this submission by

reciting the principles in Damian Belfonte (supra) indicating that it

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would be unfair for the claimant to abandon his constitutional remedy

to file separate actions for vindication of his rights.

44. With regard to the submission that proper comparators were not

provided by the claimant, the claimant replied that the defendants’

interpretation was misguided and that the officers who passed the

English Language examination and were awarded 35 points are proper

comparators.

Conclusion

45. From the extensive and substantive authorities submitted by both

sides, a mixed claim is provided for under Part 56.9(1) and (2) of the

CPR as the court has a discretion to make the necessary directions in

matters where multiple claims arise. Additionally, the case law

suggests that a mixed claim is possible as well. Despite the defendants’

argument that the cases of Webster and Fidelity argue otherwise, I am

in agreement with the claimant regarding these two cases. In Webster,

the claimant in that matter had an alternative remedy in common law

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while in Fidelity the court concluded that the constitutional relief were

included in the judicial review application as an afterthought. However,

that is not the case in this matter. It is a mixed claim having separate

reliefs for the judicial review claim and the constitutional claim.

46. Additionally, as was reasoned in Jaroo, if there is no dispute on the

facts, then it is appropriate for an originating motion to be used, now

filed by a fixed date claim. Likewise, there is no dispute here regarding

the facts. The defendant acknowledges that the claimant was not

correctly placed on the initial list as a result of an administrative error.

Regardless, of what administrative processes led to the error, it did not

bring into dispute where the claimant was placed on the initial list.

Issue 2

47. Regarding issue 2, the claimant submitted that the Attorney General is

already a party to the proceedings and would therefore had been

served. The non-inclusion of the Attorney General would not be in the

in the best interest of the claimant since the Attorney General must be

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served in the matter. They submitted that Part 56.14(1) of the CPR

allows for this:

Hearing of Application

56.14 (1) At the hearing of the application the judge may allow

any person or body which appears to have a sufficient interest

in the subject matter of the claim to make submissions whether

or not he has been served with the application.

…

48. Additionally, the Supreme Court of Judicature Act (supra) section 13

provides:

In any action or proceedings brought by any person alleging that

any of the provisions of sections 4, 5, 6, 7, 11 and 13 of the

Constitution has been, is being or is likely to be contravened in

relation to him, the High Court shall give notice of the question

arising in such proceedings to the Attorney General who shall

be entitled as of right to be heard either in person or by an

Attorney-at-law, notwithstanding that the State is not a party to

the action or proceedings.

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49. The defendants submitted that the Attorney General is not the proper

party before the court and relied on two cases: in Attorney General v

Carmel Smith (2009) UKPC 50 and The Police Service Commission v

Rodwell Murray CvA No 143 of 1994. However, the defendants

provided no excerpts from the case to highlight this position.

50. In their reply, the claimant submitted on the issue as to whether the

Attorney General should be joined as a party to the proceedings. The

cases of Ravi Jaipaul (supra) and Sheldon David v The Attorney

General of Trinidad and Tobago and The Commissioner of Police CV

2015-03886 were highlighted. In Ravi Jaipaul (supra) at paragraph 35

and 36:

35) Their Lordships (in Attorney General v Carmel Smith (2009)

UKPC 50) were of the view that the resolution of the procedural

issue was one of statutory construction which depended on the

language of the Constitution and the SLPA construed in a

purposive and practical way. The Board held that upon a proper

construction the scheme and language of the SLPA were clear.

The Attorney General was to represent the State and also to

represent (except in judicial review proceedings) statutory

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bodies which were deemed by section 19 (8) and (9) to be part

of the State. Other statutory bodies, even if public authorities

amenable to constitutional redress proceedings under section

14 of the Constitution, were not part of the State and were not

deemed to be part of the State.

…

36) Carmel Smith establishes that, in constitutional proceedings

for redress pursuant to section 14, the Attorney General is to

represent any statutory body which is deemed by section 19 (8)

and (9) to be part of the State.

51. Likewise, in Sheldon David (supra), the court found that pursuant to

section 19(2) of the State Liability and Proceedings Act Chap. 8:02

which provides, “Subject to this Act and to any other written law,

proceedings against the State shall be instituted against the Attorney

General”, the Attorney General was a proper party.

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Conclusion

52. As provided under Part 56.14(1) of the CPR and section 13 of the

Supreme Court of Judicature Act (supra), the Attorney General must

be served with the proceedings where either they may have a sufficient

interest or the claim is in respect to sections 4, 5, 6, 7, 11 and 13 of the

Constitution respectively. In this mixed claim, it will be prejudicial for

the Attorney General to not be a party to the proceedings given that

they do have a sufficient interest and there is a claim that touches upon

section 4. The Attorney General is in my view a proper and necessary

party.

Issue 3

53. The defendants submitted that the claimant rightfully had a legitimate

expectation of 35 points being awarded. The defendants submitted the

case of The United Policyholders Group and others v The Attorney

General of Trinidad and Tobago [2016] UKPC 17 at paragraph 36:

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36) In the broadest of terms, the principle of legitimate

expectation is based on the proposition that, where a public

body states that it will do (or not do) something, a person who

has reasonably relied on the statement should, in the absence

of good reasons, be entitled to rely on the statement and

enforce it through the courts.

54. Regarding an order for mandamus, the defendants submitted that in

reaching a decision to not promote the claimant, it was wrong to

submit that the Commissioner of Police acted illegally, irrationally or

that the procedure followed was improper. If this is found, the issue of

abuse or unfairness can be dealt with. Asking the court to promote the

claimant would be beyond the court’s role as the promotion is

dependent on vacancies.

55. This was not a live issue as the award of points was given as soon as the

error was discovered and the claimant has been promoted with

retroactive effect from 22nd April, 2016.

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Conclusion

56. Both sides are at an agreed position on this point. The claimant was in

fact promoted and the error corrected.

Issue 4

57. The defendants submitted that the claimant was not treated unfairly.

They submitted learning from the case of R v Secretary of State for the

Home Department, Ex parte Doody [1993] UKHL 8 at page 14:

What does fairness require in the present case? My Lords, I

think it unnecessary to refer by name or to quote from, any of

the often-cited authorities in which the courts have explained

what is essentially an intuitive judgment. They are far too well

known. From them, I derive that: -

1. Where an Act of Parliament confers an administrative

power there is a presumption that it will be exercised in

a manner which is fair in all the circumstances.

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2. The standards of fairness are not immutable. They

may change with the passage of time, both in the

general and in their application to decisions of a

particular type.

3. The principles of fairness are not to be applied by rote

identically in every situation. What fairness demands is

dependent on the context of the decision, and this is to

be taken into account in all its aspects.

4. An essential feature of the context is the statute

which creates the discretion, as regards both its

language and the shape of the legal and administrative

system within which the decision is taken.

5. Fairness will very often require that a person who may

be adversely affected by the decision will have an

opportunity to make representations on his own behalf

either before the decision is taken with a view to

producing a favourable result; or after it is taken, with a

view to procuring its modification; or both.

6. Since the person affected usually cannot make

worthwhile representations without knowing what

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factors may weigh against his interests fairness will very

often require that he is informed of the gist of the case

which he has to answer.

58. Mr. Lucien Ferguson, an Acting Superintendent attached to the Human

Resource Branch, submitted affidavit evidence providing a detailed

background of the matter. It showed no indication of unfair treatment;

rather, there was an administrative error and delays that were not in

the control of the Commissioner of Police. From the above, the

defendants submitted that in stating that the Commissioner of Police

unreasonably delayed the claimant’s promotion is to suggest that the

Commissioner of Police was aware of the errors in calculation and yet

decided not to promote the claimant.

59. Furthermore, the injunction in the matter of Audie Alexander Mona

(supra) also restrained the Commissioner of Police from promoting the

claimant.

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60. In further looking at the unfairness principle the claimant replied citing

the case of R Bhatt Murphy (a firm) (on the application of) v The

Independent Assessor [2008] EWCA Civ 755 at paragraph 50:

50) The power of public authorities to change policy is

constrained by the legal duty to be fair (and other constraints

which the law imposes)… If, without any promise, it has

established a policy distinctly and substantially affecting a

specific person or group who in the circumstances was in reason

entitled to rely on its continuance and did so, then ordinarily it

must consult before effecting any change (the secondary case

of procedural expectation). To do otherwise, in any of these

instances, would be to act so unfairly as to perpetrate an abuse

of power.

61. Given this learning, the claimant was treated unfairly by the

Commissioner of Police. The explanation that an administrative error

and the injunction were factors outside the control of the

Commissioner of Police are not sufficient in addressing the unfairness

that the claimant has faced. The claimant should have been awarded

the correct points in the first instance and since this was not done it

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should have been rectified immediately so that he was placed in the

correct position on the initial list.

62. The defendants further submitted that this is a matter for judicial

review as the claimant has not shown that his right under section 4(d)

has been infringed. The claimant has not shown comparators who were

more favourably treated. The claimant does not show that the

defendants acted with any sort of malafides. These elements must be

established before the infringement of the right to equality of

treatment is made out. The defendant submitted the case of Mohanlal

Bhagwandeen v the Attorney General of Trinidad and Tobago Appeal

No. 45 of 2003 at paragraph 18:

18) A claimant who alleges inequality of treatment or its

synonym discrimination must ordinarily establish that he has

been or would be treated differently from some other similarly

circumstanced person or persons, described by Lord Hutton in

Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] 2 All ER 26 at paragraph 71 as actual or hypothetical

comparators. The phrase which is common to the anti-

discrimination provisions in the legislation of the United

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Kingdom is that the comparison must be such that the relevant

circumstances in the one case are the same, or not materially

different, in the other.

63. In Ricardo Morris et al v The Commissioner of Police CV.2016-02527

at paragraphs 75 and 76 further illustrates the point:

75) It was my view however, that it was not possible for the

Claimants in the context of this application for judicial review to

obtain relief under section 4 of the Constitution. I was of the

view that the application for constitutional relief in judicial

review proceedings would lead to procedural confusion, of the

kind identified by their Lordships in Antonio Webster v. AG. The

originating process which is prescribed for judicial review differs

from that prescribed for the claims under section 14 of the

Constitution. In judicial review proceedings, the Claimant is first

required to obtain the Court’s leave. In approaching the Court

for leave, the Claimant has, even pre-CPR, been required to

surmount a very low threshold. Nonetheless, there is no

analogous requirement for leave, in applications under section

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14. Applications under section 14 are as of right.

76) It was my view that the procedural confusion was

compounded by the requirement to be found at Rule 56.10(2)

CPR, that the Claimant who seeks relief under section 14 must

first serve the proceedings on the Attorney General. There is no

analogous requirement for relief sought in judicial review.

Learned Counsel relied on Dennis Graham v. Police Service

Commission and the Attorney General of Trinidad & Tobago.

The Attorney General, being a party to those proceedings must

have been served. It was therefore my view that the Claimants

were wrong to seek constitutional relief in this judicial review

application and I refused to grant the declaration under section

4(d).

64. Since the claimant has since been promoted the issue is now moot, the

defendant says.

65. On the point of delay, the claimant cited several authorities but an

excerpt from the case of Richard Ramnarace v The Police Service

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Commission and the Director of Public Prosecutions CV 2007-00218 at

paragraph 9 which cited the case of Amherst v Walker [1983] 2 All ER

1067 at 1075 D, a case dealing with a landlord’s prolonged delay in

serving a notice on a tenant, is useful:

The expression “unreasonable delay” does … mean something

more than “prolonged delay” and it may … be used to express

the notion either or delay for which no acceptable reason can

be advanced or delay which no reasonable man would incur

acting in his own interest. But if this is its meaning then the

absence of reason has no necessary relation to duration. If on

the other hand … the phrase is used to describe such delay as it

would not in the circumstances be reasonable to expect the

other party to put up with, then it seems to me that it contains

within it, by necessary implication, the notice of hardship or

prejudice for how otherwise is the other party harmed by it.

66. Additionally, in Anthony Leach v Public Service Commission HCA 1002

of 2004:

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where delay in instituting charges was excused by a lack

of human resources by the defendant, the court

reasoned that its consideration is to decide whether the

delay was fair.

67. The claimant submitted that the most important consideration is

whether the delay substantially prejudiced the claimant. In not

awarding the full marks of 35 points, it meant the claimant was not

higher up on the initial list to be promoted to Sergeant. The claimant

lost out on many opportunities as a result of this alongside the

Commissioner of Police’s lateness in rectifying the situation. Therefore,

if the law subjects a public authority to carry out a duty, it has not

carried out its duty and the effect of which is an adverse effect on a

person, the said delay which is not bound by a time frame, can be

brought for judicial review for unreasonable delay.

68. On the point of unequal treatment, principles were enunciated in

Webster and Others v the Attorney General of Trinidad and Tobago

[2015] UKPC 10 at paragraph 24:

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24) The current approach to section 4(d) of the Constitution of

Trinidad and Tobago may therefore be summarised as follows:

(1) The situations must be comparable, analogous, or

broadly similar, but need not be identical. Any

differences between them must be material to the

difference in treatment.

(2) Once such broad comparability is shown, it is for the

public authority to explain and justify the difference in

treatment.

(3) To be justified, the difference in treatment must have

a legitimate aim and there must be a reasonable

relationship of proportionality between the means

employed and the aim sought to be realised.

(4) Weighty reasons will be required to justify

differences in treatment based upon the personal

characteristics mentioned at the outset of section 4:

race, origin, colour, religion or sex.

(5) It is not necessary to prove mala fides on the part of

the public authority in question (unless of course this is

specifically alleged).

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69. Additionally, in Dennis Graham (supra), the claimant submitted this

excerpt at paragraph 24:

24) l therefore remain convinced, that in order to establish a

section 4 (d) breach of the Constitution all that is required is

proof by an aggrieved party that he was less favourably treated

than other similarly circumstanced persons and/or that they

were more favourably treated than he was. This determination

is to be undertaken by a court on a consideration all the

evidence, both of the claimant and of the respondent. The duty

of all parties is of candour. The presumption of bona fides is

facilitative disclosure by a public authority which has nothing to

hide and is genuinely interested in accountability and

transparency and in achieving good public administration. Once

a prime facie case of the violation of the right to equality of

treatment is raised, the onus shifts to the public authority to

explain and justify its decision and to show that there is no

breach of the right. It is in this context, and evaluation of all the

evidence (in which the role of the court may be viewed in

somewhat of an investigative light), that the presumption of

regularity may play a role in determining the outcome of that

exercise. At the end the process it remains for a claimant to

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show both a difference in treatment and a lack of legitimate or

lawful reason for that treatment. In my opinion, this approach

is clear, fair and balanced. It is also an approach that should

make sense and be acceptable to the ordinary Trinidadian and

Tobagonian.

70. The claimant submitted that in using the case of Mohanlal

Bhagwandeen (supra), it has been interpreted that claimants have to

prove similarity of circumstance and differential treatment, before a

public authority can explain its actions. However, in the case of Audine

Mootoo v The Attorney General of Trinidad and Tobago and The

Public Service Commission CV 2007-00587, even though a valid

comparator was not available the court held that there was a breach of

section 4(d) rights and it took into account the wider concept of

fairness and treatment.

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Conclusion

71. Regarding the comparators used by the claimant to show unfairness

which the defendant argues are not appropriate comparators, I would

also disagree. The claimant has indicated that those on the list who

were similarly placed were provided the correct points while he was

not. As per the case Dennis Graham (supra), all that need to be shown

is that an aggrieved party has been treated less favourably than others.

Issue 5

72. On the issue of damages in the form of monetary compensation and

vindicatory damages, the defendants submitted that the purpose of all

relief in constitutional matters is to vindicate and uphold the rights of

others as in the case of Ramanoop (supra).

73. The defendants submitted that under section 14(2) of the Constitution,

damages are a subset of discretionary relief. This was referred to in

Suratt and others v Attorney General of Trinidad and Tobago [2007]

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UKPC 55 and the defendants interpreted the judgment as showing that

if there was an infringement, the loss suffered is highly speculative and

the court refused to award damages. Rather, before damages are

awarded it must relate to any actual losses by the claimant.

74. Regarding vindicatory damages the defendants submitted that the

purpose of this award is not punitive as in the case of Tamara Merson

v Drexel Cartwright and Attorney General [2005] UKPC 38 at

paragraph 18 has shown:

18) The purpose of a vindicatory award is not a punitive

purpose. It is not to teach the Executive not to misbehave. The

purpose is to vindicate the right of the complainant, whether a

citizen or a visitor, to carry on his or her life in The Bahamas free

from unjustified Executive interference, mistreatment or

oppression. The sum appropriate to be awarded to achieve this

purpose will depend upon the nature of the particular

infringement and the circumstances relating to that

infringement. It will be a sum at the discretion of the trial judge.

In some cases a suitable declaration may suffice to vindicate the

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right; in other cases an award of damages, including substantial

damages, may seem to be necessary.

75. Further no loss has been itemised by the claimant to show any losses

from that occurred from the alleged constitutional breach. The

claimant has been promoted which has been retroactively recognised.

76. The defendants reiterated that the oversight in promotion resulted

from a calculation error and upon realisation the Commissioner of

Police made the relevant changes. Any award of monetary or

vindicatory damages would in effect be penalising the Commissioner of

Police for correcting an error.

77. The claimant submitted as per the case of Ramanoop (supra), that the

court is empowered in the exercise its constitutional jurisdiction to

uphold and vindicate constitutional rights.

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78. In terms of vindicatory damages, the defendants submitted the case of

Alleyne & Other v The Attorney General [2015] UKPC 3 at paragraph

40 where the court said:

40) While an award under section 14 need not necessarily

amount to the full financial loss which the injured party may

have suffered, conversely in some cases it is right that an award

should go beyond the amount of pecuniary damage which the

injured party may be able to prove. Indeed the fact that it may

be very difficult for the complainant to prove a loss measurable

in strictly financial terms, in a case where there has been a

serious violation serious of his constitutional rights, may be a

good reason for adding an amount to mark the importance of

respect for the constitutional right which he has been denied.

79. Additionally, in The Attorney General of Trinidad and Tobago v Selwyn

Dillion CA CIV P245 of 2012, the Court of Appeal cited a decision by

Rampersad J which sets out principles for the award of damages for

constitutional breaches:

(1) the award of damages is discretionary;

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(2) the nature of any award of damages is always with the

intention and purpose of upholding and/or vindicating the

constitutional right(s) infringed and in furtherance of effective

redress and relief for the breaches;

(3) whether an award of damages is to be made depends on the

circumstances of the case, including consideration whether a

declaration alone is sufficient to vindicate the right(s) infringed

and whether the person wronged has suffered damage;

(4) in determining the sufficiency of a declaration and/or the

need for damages, the effect(s) of the breach on the party

seeking relief is a relevant and material consideration;

(5) compensation can thus perform two functions - redress for

the in personam damage suffered and vindication of the

constitutional right(s) infringed;

(6) compensation per se is to be assessed according to the

ordinary settled legal principles, taking into account all relevant

facts and circumstances, including any aggravating factors;

(7) in addition to compensation per se, an additional monetary

award may also need to be made in order to fully vindicate the

infringed rights and to grant effective redress and relief;

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(8) such an additional award is justified based on the fact that

what has been infringed is a constitutional right, which adds an

extra dimension to the wrong, and the additional award

represents what may be needed to reflect the sense of public

outrage at the wrongdoing, emphasise the importance of the

constitutional right and the gravity of the breach, and/or to

deter further similar breaches;

(9) the purpose of this additional award remains, as with

compensation, the vindication of the right(s) infringed and the

granting effective relief and redress as required by section 14 of

the Constitution and not punish the offending party; and

(10) care must be taken to avoid double compensation, as

compensation per se can also take into account similar

considerations, including relevant aggravating factors and is

also intended to uphold and/or vindicate the right(s) infringed.

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Conclusion

80. In their submissions the claimant indicated that a global sum of

$250,000.00 which comprises monetary compensation and vindicatory

damages would satisfy the losses of the claimant. The claimant has not

itemised his losses. However, he has indicated that opportunities that

might have been available to him had he been promoted were not

available because he was not in position to derive such benefits. The

defendant did not address these issues specifically only to say that the

losses were not particularised.

81. There is no doubt that having not been promoted that opportunities

within the post of Sergeant would not have been available. I note that

he has been promoted and that his salary would now take effect as of

22nd April, 2016. This means any loss of salary has been rectified.

82. Therefore it stands to reason that vindicatory damages that upholds

constitutional rights are the next consideration. Regardless of whether

this was an error or not, the claimant’s career advancement had been

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affected. There is no return to addressing the period of loss and

possible opportunities for such loss of time. Citizens should rightly

expect from public authorities competency and predictability in their

lives. If, as we take the defendant’s argument, we should not punish

the Commissioner of Police for an error, then should we also not take

heed of the prejudice suffered by the claimant? In this instance, who is

better placed to take the brunt of a supposed error by a public

authority, the citizen or servant of the state or the state itself? Further,

the claimant was made to file a freedom of information application to

get relevant information that ought to have been provided to him.

While errors can be made, there are consequences to errors. This must

have caused significant anguish to the claimant. He had to pursue a

matter which ordinarily he would not have had to.

83. With this in mind I am of the view that some form of vindicatory

damages should be awarded to uphold the claimant’s rights in this

regard in line with the authorities cited above. However, the sum

suggested by the claimant is too high. In my view an award of

$60,000.00 is appropriate in these circumstances to signal the court’s

recognition of the right in question and the need for constitutional

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rights to be upheld. The constitution is our highest law. Citizens of all

walks of life must be treated equally. Unequal treatment can result

from errors of the kind considered here. Special care must be taken

when matters of promotion are concerned. Even administrative errors

have real and lasting consequences.

84. In summary, the court’s decisions and orders are as follows:

I. A joint judicial review and constitutional claim is possible and

appropriate in certain circumstances.

II. The Attorney General was a proper and necessary party.

III. The claimant had a legitimate expectation of being awarded the

correct points in his examination category.

IV. It is declared that the claimant’s right to equality of treatment

by a public authority under section 4 (d) of the Constitution was

breached.

V. The second defendant must pay damages to the claimant in the

sum of $60,000.00.

VI. The defendants must pay the claimant’s costs certified fit for

Senior Counsel, one junior Counsel and one instructing attorney

to be assessed by a Registrar in default of agreement.

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85. This matter was passed to me at an advanced stage on the elevation of

a judge to the Court of Appeal and had to be fitted into this court’s

schedule. I thank the attorneys for the quality of assistance they

provided and the parties for their patience in waiting for their

judgment. A special word of thanks is due to my JRC, Mr Shane Pantin,

as well.

Ronnie Boodoosingh

Judge

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