Adio Clasp-Lewis v The Attorney General of Trinidad and Tobago

• Jurisdiction: Trinidad & Tobago
• Judge: Devindra Rampersad
• Judgment Date: 03 September 2024
• Neutral Citation: TT 2024 HC 193
• Docket Number: Claim No.: CV2023-03284
• Court: High Court (Trinidad and Tobago)

Between

Adio Clasp-Lewis

Claimant

and

The Attorney General of Trinidad and Tobago

Defendant

Before The Honourable Mr. Justice Devindra Rampersad

Claim No.: CV2023-03284

IN THE HIGH COURT OF JUSTICE

Appearances:

Claimant: Arden Williams instructed by Anthony Moore and Mariah Ramrattan

Defendant: Maria Belmar, Victoria Amorer and Che Richards instructed by Melissa Papoonsingh and Kristyn Lewis

RULING

Table of Contents

Introduction	3
The defendant's submissions	3
The claimant's submissions	5
The defendant's submissions in response	6
Issues	7
Discussion	7
The Facts	7
Abuse of process	9
Delay	12
Conclusion	14
The Order	15

Introduction

1 By re-amended fixed date claim form filed on 17 January 2024, the claimant seeks constitutional relief from the defendant after alleging that his rights under section 4(a), 4(b), 4(d) and 5(e) of the Constitution have been breaches. The following reliefs have been claimed:

• 1.1. A declaration that the Chief of Defence Staff's discharge of the claimant from the TTDF for his non-attendance at training as a result of his injuries sustained through no fault of his own was a breach of his Constitutional rights pursuant to Sections 4(a), 4(b), 4(d) and 5(e);

• 1.2. A declaration that the Chief of Defence Staff's failure to take into consideration in the decision to discharge the claimant, the assault occasioned upon the claimant by Corporal Coombs (Cpl. Coombs) was in contravention of the claimant's constitutional rights pursuant to Section 4(a) of the Constitution;

• 1.3. The Chief of Defence Staff's failure to treat the claimant equally before the law is in contravention of the claimant's constitutional rights pursuant to section 4(b) of the Constitution;

• 1.4. An award of damages for the personal injury sustained by the claimant whilst a recruit in the Trinidad and Tobago Defence Force;

• 1.5. An order for monetary compensation to be assessed in favour of the claimant for the loss and damage which he suffered as a direct result of the contravention of his rights under the Constitution;

• 1.6. Damages, inclusive of vindicatory damages;

• 1.7. Interest on such sums and for such period as may be awarded to the claimant;

• 1.8. Costs; and

• 1.9. Such further orders and or directions as may be necessary in order to enforce the fundamental rights of the claimant.

2 On 16 October 2023, the defendant filed a notice of application to strike out the claimant's case based on it being an abuse of process, in particular.

The defendant's submissions

3 The claimant's claim surrounds an assault that was occasioned upon him by one of his superior officers during his training with the TTDF. As a result of the said assault, the claimant stayed at the Medical Inspection Room (“ the MIR”) for a lengthy period and was eventually told that he would have to be discharged as he surpassed the threshold a recruit is allowed to be in the MIR.

4 It was argued that a constitutional motion is not the appropriate forum for the claimant to bring the instant claim since the claimant had the alternative option of applying for judicial review with respect to the Chief of Defence Staff's ( the CDS) decision to discharge the claimant and or accessing redress via common law by bringing a claim for damages for personal injuries occasioned by the alleged assault and battery and or negligence.

5 It was further argued that the true complaint in this instance is that of alleged maladministration by the CDS and the grounds outlined in the claimant's affidavit are sufficient to create a cause of action under the Judicial Review Act. Therefore judicial review is the most appropriate to obtain judicial control over administration action and was the course which the claimant ought to have pursued in order to get the relief sought in this matter.

6 The claimant's claim revolves around the decision by the CDS to discharge him allegedly for surpassing the threshold for time spent in the MIR as a recruit. Therefore, the claimant is challenging the decision of a public authority, the CDS, which falls squarely within section 5 of the JRA and the relief that the claimant is ultimately seeking is an administrative order.

7 The defendant's position therefore is that it is an abuse of process for the claimant to ignore the alternative remedy of judicial review and to seek access to the court via Constitutional Motion. The authorities of Khemraj Harikissoon v the Attorney General of Trinidad and Tobago 1, Jaroo v Attorney General 2, Attorney General v Ramanoop 3, Rawle Gift v Alfred Earle Jones and ors 4, Stephen Mahabir v the Attorney General 5, Telecommunications Services of Trinidad and Tobago Limited v Telecommunications Authority of Trinidad and Tobago 6 were relied on.

8 It was also argued that the claimant seeks relief for an award of damages for personal injury sustained by the claimant whilst a recruit in the TTDF and the correct avenue to bring such a claim would be by way of an ordinary civil action in assault and battery. The claimant had the opportunity to raise a civil action of assault against Corporal Coombs and it was open to the claimant to seek redress via a claim for negligence. There has also been no evidence provided as to why alternative claims for judicial

review and assault and battery and or negligence would not be adequate means of relief and therefore not justified the recourse to constitutional relief

9 It is also not open to the claimant to assert, as a justification that the window of opportunity for the filing of a claim in judicial review has passed. Aggrieved persons are not entitled to seek constitutional relief under section 14 merely because other adequate alternative remedies are statute-barred.

10 The authority of The Attorney General v Dion Samuel 7 was also relied on where the respondent in this matter requested a Court martial but was denied one which he argued constituted a breach of his right to protection of the law as section 87 of the Defence Force Act mandated that the claimant should have been tried by court Martials. However, in the instant claim, the claimant is challenging the decision of the defendant to discharge him as a recruit on the basis that the CDS failed to take into account relevant considerations and took into account irrelevant matters. The law is clear that when a litigant is seeking to question the decision of a public authority, the proper avenue is by way of judicial review. Therefore, it was submitted that the proper redress was via judicial review that would provide effective and proper relief without recourse to constitutional principles.

11 Further, that the claimant's fixed date claim form ought to be struck out on the basis that there are adequate alternative remedies and the constitutional court is not the appropriate forum. Moreover, the claimant has not identified any special feature that justifies the recourse to constitutional redress and his claim is therefore an abuse of process.

The claimant's submissions

12 The claimant submitted that it was eventually brought to the attention of the CDS that he was admitted to the Medical Inspection Room ( the MIR) due to the assault occasioned upon him. The issue is that the CDS failed to take this into consideration before making a decision to discharge him.

13 Further, that the submission made by the defendant that the claimant's claim is better suited for judicial review establishes the complexity of the claimant's case and the varying issues within.

14 The authority of Damian Belfonte v the Attorney General of Trinidad and Tobago 8 was relied on and it was submitted that the right to a fair hearing, the right to

protection of the law and the breach of one's right to equality of treatment are only available to the claimant via the Constitution

15 The claimant also submitted that the competing interest of each claim he could have brought must be balanced and in so doing permit the claimant to file one singular claim that allows the claimant to achieve all the reliefs applicable to his matter and the events as they unfolded.

16 As it relates to the defendant's argument that the claimant's claim is purely a constitutional claim, the claimant relied on Dion Samuel v the Attorney General of Trinidad and Tobago 9 and stated that the court in this case, took consideration of the fact that there was a clear breach of the claimant's fundamental rights to due process and protection of the law.

The defendant's submissions in response

17 In response to the claimant's reliance on Damian Belfonte, the defendant raised that in this authority, the claimant was arrested without being informed of his right to retain an attorney. Further, whilst he was in prison he was assaulted and had his Rastafarian dreadlocks shorn off against his will and was subjected to a meat diet, contrary to his religious beliefs and practice.

18 In this authority, the facts underscored clearly from the outset the true nature of the rights that were allegedly contravened. Thus, these were constitutional in nature and not merely common law rights. The facts that are in this case do not support the same conclusion as the Belfonte case and thus, the court ought not to adopt the same position taken despite the claimant's contention.

19 Further, as per Harrikissoon v the AG 10, the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not sufficient to invoke the constitutional jurisdiction of the Court.

20 It was argued that the claimant's claim seeks to circumvent the bar which he faced by being out of time to apply for leave to apply for judicial review and in this regard, the claimant's claim ought not to be allowed by way of constitutional motion because it amounts to an abuse of process.

Issues

21 The court sees the relevant issues to...