Bazie v The Attorney General
| Jurisdiction | Trinidad & Tobago |
| Judge | Fraser, J.A. |
| Judgment Date | 10 March 1971 |
| Neutral Citation | TT 1971 CA 7 |
| Docket Number | Civil Appeal No. 72 of 1970 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 10 March 1971 |
Court of Appeal
McShine, C.J.; Phillips, J.A.; Fraser, J.A
Civil Appeal No. 72 of 1970
J.A. Wharton, Q.C., with Dr. Aeneas Wills and Mrs. V. O. Alcala for the appellant.
Tajmool Hosein, O.C., with Clinton Bernard, Crown Counsel for the respondent.
Practice and Procedure - Court Martial
Constitutional Law - Fundamental rights and freedoms — Right to a fair hearing.
Criminal Law - Treason — Mutiny
On November 14, 1970 an ex parte application was filed on behalf of the appellant for leave to apply for an order of Prohibition to prohibit a Court-Martial from hearing charges of mutiny with violence against the appellant on the ground that the Court-Martial had exceeded its jurisdiction. On the same day an Assistant Registrar purporting to act in pursuance of s.13 of the Supreme Court of Judicature Act, 1962, (hereafter referred to as the Act) caused a notice of the application to be served on the Attorney General. Section 13 of the Act is as follows:
“13. In any action or proceedings brought by any person alleging that any of the provisions of sections 1, 2, 3, 4, 5 and 7 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 parson or by counsel, notwithstanding that the Crown is not a party to the action or proceedings.”.
When the application came on for hearing, Tajmool Hosein, Q.C., and Clinton Bernard appeared as counsel for the Attorney General and also as counsel for the members of the Court-Martial, none of whom was named in the proceedings. J. Algernon Wharton, Q.C., for the applicant objected to the appearance of the Attorney General on the ground that he had no right of audience at that stage of the proceedings for the reason that the application was ex parte. In reply counsel submitted that the Attorney General had been served with a notice pursuant to 8.13 of the Act; and that, in substance, the solicitor's affidavit impliedly alleged a breach of certain constitutional rights in relation to the applicant viz: a breach of fundamental justice by the Court-Martial and a deprivation of the right of the applicant to a fair hearing; therefore, he said not only did the Attorney General have a right to appear but equally so did the members of the Court-Martial because they had an interest in the proceedings. Counsel for the applicant contended, however, that the Attorney General might be entitled to appear but only after leave to apply for the order was granted; implying, presumably, that only at that stage the question would arise as to whether an allegation was being made that any provisions of the Constitution were being or were likely to be infringed. The trial judge, Braithwaite, J., understood the submissions of counsel for the attorney general to be, that “even though no specific allegations were made that any of the provisions of ss. 1 - 5 and 7 of the Constitution had been contravened … substantially what the affidavit should be interpreted to mean is that:
-
(a) the applicant was being deprived of the right of a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations; and
-
(b) the applicant was being deprived of the procedural provisions as are necessary for giving effect and protection to the applicant's rights and freedoms.”
It seems clear that the interpretation which the trial judge understood as being urged was that the provisions of s.2 paras. (e) and (h) of the Constitution were being infringed in relation to the applicant. Section 2 pares. (e) and (h) read as follows:
“2. Subject to the provisions of sections 3, 4, and 5 of this Constitution, no law shall abrogate, abridge or infringe or authorise the abrogation, abridgement or infringement of any of the rights and freedoms hereinbefore recognised and declared and in particular no Act of Parliament shall –
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
(h) deprive a person of the right to such procedural provisions as are necessary for the purpose of giving effect and protection to the aforesaid rights and freedoms.”
The trial judge upheld Mr. Hosein's submission for the reason, as he stated, “that I am of the opinion that although not specifically spelt out as such, the allegations contained in the affidavit in support of the application clearly indicates that at least the provisions of s.2 (e) and (h) of the Constitution have been contravened in relation to the applicant. If I am right in this respect, it would appear that the attorney general by virtue of the provisions of s.13… is entitled as of, right to be heard either in person or by counsel.”
That finding by the trial judge coincided substantially with the submissions made by Mr. Hosein; but on the hearing of this appeal Mr. Hosein said he could not support that statement of the trial judge because the appellant did not allege a contravention of s.2 of the Constitution. Nevertheless, he said, he would submit that the appellant impliedly alleged a contravention of s.1 par as. (a) and (b) of the Constitution. Mr. Hosein's avoidance of the trial judge's findings with regard to s.2 pares. (e) and (h) of the Constitution is perhaps the least of the oddities which have attended these proceedings. By far the most important is the fact that the proceedings for which the order of Prohibition was sought have recently come to an end; but another, of lesser importance, is the fact that the proceedings arose as a result of the act of the Registrar or an Assistant Registrar whereby a notice was sent to the attorney general allegedly in pursuance of the provisions of 8.13 of, the Act.
Inspite of the tenacious argument by counsel for the appellant that the notice was invalid because it was given by the Registrar and not by the High Court, meaning, no doubt, by or on the instructions of a judge of the High Court, I hold the view that any such procedural impropriety cannot affect the right of audience of the Attorney General where the proceedings fall within the provisions of 8.13. During the argument, reference was made to the functions and duties of the Registrar as provided in ss.65 and 66 of the Act and also to the right of this court, in deciding the issue as to the procedural impropriety, to invoke the presumption that all things are presumed to be correctly and solemnly done until the contrary is proved. The effect of this would be to presume that the notice was issued on the instructions of to judge of the High Court. The notice clearly does not say this, and because it does not, it should at least have stated, as required by s.13, the question, which arose in the proceedings. Had this been done the contention in favour of the presumption might have been tenable on the ground of ostensible authority. As it was, the notice did not purport to possess either the express or ostensible authority of the High Court. Section 13 stipulates that “the High Court shall give notice of the question”. In my judgment, that phrase means what it says and the Registrar may only properly issue a notice under the section upon the directions of a judge of the High Court. In the circumstances I am not willing to resort to the presumption of regularity particularly so where the matter concerns the Constitution. I think the Registrar should have been guided by 0. 55 r.21 of the Rules of the Supreme Court, 1946 which provides:
“21. If any matter appears to the Registrar s proper for the decision of a Judge he may refer the same to a Judge, and the Judge may either dispose of the matter or refer the same back to the Registrar with such directions as he may thank fit.”
The application in this case was, in my opinion, a matter eminently suitable for the animadversion of a judge of the high Court and the inadvertence of the Registry r ought not to be accorded the benefit of the presumption of rectitude and solemnity.
Having said this, I cannot, however, uphold the submission that the procedural impropriety is determinative of the issue whether the attorney general has a right of audience. For present purposes, I shall assume that in all respects the application falls within the ambit of s.13 of the Act. In that event, the section creates a substantive right in the attorney general to be heard. The provision as to notice is merely procedural and, in my opinion, the attorney general's right of audience might be exercised by him although he might not have received a notice or even though a notice was not actually sent to him. The rule, which enables the ex parte application to be made, does not preclude the appearance at the hearing of persons other than the applicant; consequently, I cannot hold that the rule binds the court to hear such an application in the presence of the applicant alone
Another point was made; it concerned the status of an ex parte application in proceedings such as these. Although the ex parte application only sought leave to make an application for an order of Prohibition it seems to me that it cannot, for that reason, be precluded from consideration as proceedings within the meaning of the section on the ground that the applicant is merely informing the court of the allegations he intends to make if the court grants leave. The question to be answered here is - when do proceedings commence in matters such as this? Do they commence when arts application for leave is filed or do they commence, in the event of leave being obtained, when the application for the order of prohibition is filed? In my judgment, the proceedings are commenced when and so soon as the ex parte...
To continue reading
Request your trial