B.W.I.A. v Farmer
| Jurisdiction | Trinidad & Tobago |
| Judge | Hassanali, J.A. |
| Judgment Date | 27 January 1983 |
| Neutral Citation | TT 1983 CA 8 |
| Docket Number | Mag. App. No. 123 of 1981 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 27 January 1983 |
Court of Appeal
Hyatali, C.J.; Kelsick, J.A.; Hassanali, J.A
Mag. App. No. 123 of 1981
A. Jessamy for the appellant
A. Alexander, Q.C., R. Nelson and Mrs. Higgins for the respondent
Labour Law - Termination of employment
Practice and procedure - Magistrate's Court — Complaint filed out of time
Judgment delivered by Hassanali, J.A. On the 16 th February, 19$1 the appellant, a limited liability corporation was convicted by a magistrate on a complaint that the appellant “did on the 5 th May 1978 at Port of Spain in the County of St George West, wrongly terminate the [respondent's] contract of employment;” contrary to section 42(2)(b) of the Industrial Relations Act No. 23 of 1972 (hereinafter referred to as “the Industries Relations Act.”). The complaint was laid on the 12 th day of July, 1979. Section 42 reads:
“42. (1) …
(2) An employer shall not –
(a) …
(b) dismiss or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours;
(3) An employer who contravenes any of the provisions of subsections (1) and (2) is guilty of an offence and liable on summary conviction to a fine of five thousand dollars or to imprisonment for one year or to both such fine and imprisonment; and the Magistrate making the order for conviction may also order that the worker be reimbursed any wages lost by him and direct that, notwithstanding any rule of law to the contrary, the worker be reinstated in his former position or in a similar position.
(4) In any proceedings for an offence under subsection (3) if all the facts and circumstances constituting the offence other than any specific intent, are proved, the defendant may be convicted unless he proves that he did not have the specific intent in question.
(5) Subject to subsection (3) y nothing in this section shall be construed so as to compel any employer, in the absence of agreement to the contrary, to pay or compensate any worker for any time not spent in performance of the duties of his employment.
It was accepted by both sides that the charge intended and alleged by the complaint was the first of the two offences created by section 42(2)(b) viz that the appellant did “dismiss” the respondent “because of participation in union activities outside working hours.”
The relevant facts as found by the magistrate may be briefly stated as follows:
“The respondent was at all material times until the 5 th May, 1978 in the employ of the appellant. By letter addressed to the respondent which the respondent received on 5 th May, 1978 the appellant terminated his employment with effect from that day “because he engaged in union activities outside his working hours.”“
Objection was taken to the jurisdiction of the magistrate to hear the complaint on the ground that the complaint was laid out of time viz on the 12 th July, 1979; but the learned magistrate being of opinion that the respondent's dismissal, if unlawful, was a continuing offence, over-ruled the objection. He ordered the appellant: to pay a fine of $1,000.00 recoverable by distress, to re-instate the respondent and to pay all wages lost by him from the date of his dismissal.
The appellant appealed on several grounds but the main ground upon which it relied was that the learned magistrate had no jurisdiction to hear the complaint and that he erred in his interpretation of section 42 of the Industrial Relations Act.
Before us however the respondent raised a preliminary objection viz that the appellant cannot or ought not to be permitted to exercise its right of appeal since it failed to satisfy the conditions precedent to such exercise as prescribed by section 129 of the Summary Courts Ordinance Ch. 3 No. 4 (hereinafter referred to as “the Ordinance”).
We heard the parties both on the preliminary abjection as well as on the merits of the matter and then reserved our judgment in the case.
Section 128 provides that where a right of Appeal is given by the Ordinance … “then and in every such case an appeal shall lie under the Ordinance and the proceedings upon ouch appeal shall be according to the Ordinance.”
Section 129 reads:
-
“129. (1) An appeal shall be commenced by the appellant giving to the Clerk notice of such appeal, which may be verbal or in writing, and if verbal shall be forthwith reduced to writing by the Clerk and signed by the appellant, or by his counsel or solicitor if he has appeared by counsel or solicitor. [Clerk” means “Clerk of the Peace” or “Assistant Clerk of the Peace.”]
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(2) The notice of appeal shall be given in every case before the expiration of the seventh day after the day on which the court has made the order or given the refusal appealed against.
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(3) Such notice shall be as in Forms 1 or 2 in the Fourth Schedule hereto.
The appropriate Form in the instant case reads:
“FORM OF NOTICE WHERE THE APPELLANT IS A DEFENDANT TRINIDAD AND TOBAGO
TO: A.B.
Clerk of the Court
Take Notice that I, E.F. aggrieved by a conviction (or order) of G.H. dated against me the said a E.F. for having as therein alleged on the day of (here state briefly the conviction or order) do appeal against such conviction on the ground that I am not guilty.
Dated this day of 19
E.F. (or his Counsel or Solicitor).”
Section 145 reads:
“145. No objection shall be taken or allowed, on any appeal, to any notice of appeal which is in writing or to any recognizance entered into under this Ordinance for the due prosecution of such appeal for any alleged error or defeat therein; but if any such error or defect appears to the Court of Appeal] to be such that the respondent on such appeal has been thereby deceived or misled, it shall be lawful for the Court to amend the same and, if it is expedient to do so, also to adjourn the further hearing of such appeal, such amendment and such adjournment (if any) being made on such terms as the court may deem just.”
Counsel for the respondent submitted that the right of appeal being a creature of statute a party seeking to exercise such right must first comply strictly with the statutory provisions which create it; further that these provisions are mandatory or imperative and not directory; and that the appellant having failed to comply with them there was no appeal before the court and therefore the proceedings ought to be struck out.
Counsel submitted that Sec. 129 required either the personal signature of the appellant or that of counsel or solicitor who appeared on his behalf at the trial, and no other.
He argued that section 145 did not apply to the respondent's preliminary objection. For, he submitted, since neither the appellant nor counsel by whom it appeared at the trial had signed the document in question, neither a “Notice of appeal” nor a “Notice of Appeal in writing” was constituted under the Ordinance.
We were referred on behalf of the respondent to the decisions of this court in Stanley v. Andrews (1963) 5 W.T.R. 457; Pritchard v. Lopez Mag. App. 171/77 (16 th July, 1978); and Horsley v. Capildeo (1959) 1 W.I.R. 89; to the Jamaican case.. R v. Dusard (1964) 7 W.I.R. 91; and to the English cases R v. Justices of Glamorganshire (1890) 24 Q.B.D. 675 and Poprika Limited and another v. Board of Trade [1944] 1 All E.R. 37. Counsel submitted that the decision in Stanley v. Andrews (supra) is inconsistent with that in Pritchard v. Lopez (supra) and he urged that the decision in the former ought to be followed in preference to that in the latter case.
It is common ground that the appellant is a limited liability Company and that it appeared, at the trial by counsel Mr. A. Jessamy and not by a Solicitor. The Notice of Appeal in question (hereinafter referred to as “the document”) was given in writing ors 23 rd February, 1981. It reads:
“TRINIDAD AND TOBAGO:
NOTICE OF APPEAL OF DEFENDANT PURSUANT TO SUMMARY COURTS ORDINANCE, CHAPTER 3 NO. 4 SECTION 127
To: The Clerk of the Peace
Magistrate's Court
Port of Spain
TRINIDAD AND TOBAGO (B.W.I.A.) INTERNATIONAL CORPORATION FORMERLY AIRWAYS
TAKE NOTICE that British West Indian Airways Limited (hereinafter called ‘the Company) of Kent, Long Circular Road, Maraval, aggrieved by a conviction (or order) of dated 16 th day of February, 1981 against the Company for having as therein alleged on the 5 th day of May, 1978 wrongfully terminated the employment of Peter Farmer do appeal against such conviction on the grounds that:
“l. The court had no jurisdiction in the case.
“2. The Company/appellant is not guilty in that the decision is unreasonable or cannot be supported having regard to the evidence.
“3. The decision is erroneous in point of law in that the magistrate failed to properly interpret the provisions of section 42(2) of to Industrial Relations Act 1972 as amended.
“4. The magistrate erred in law in that in response to the Company/appellant submitting that there was no case to answer, he failed to call upon the appellant to lead evidence, but proceeded to give final judgment in the matter.
Dated this 23 rd day of February, 1981.
“Signed: Pollonair & Blanc
Solicitors for Appellant
29 th St. Vincent Street
Port of Spain”
It is clear that the Ordinance prescribes, inter alia, that the notice of appeal “shall” be:
(a) in writing;
(b) signed by the appellant or “by his counsel or solicitor;” if he has appeared by counsel or solicitor; and
(c) made within a specified period of time from the date of the decision appealed from.
It is not in dispute that there has ‘assn compliance with (a) — the document was in writing; and with (c) - the document was made within the time limited by the Ordinance.
It is in dispute that there has boon compliance with (b). In this connection reference may be made to section 57(1) of the Ordinance which provides:
“57(1) If, when the case is called,...
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