Brown-antoine et Al v Sharma

• Jurisdiction: Trinidad & Tobago
• Judge: Warner, J.A.,Archie, J.A.,Weekes, J.A.
• Judgment Date: 31 July 2006
• Neutral Citation: TT 2006 CA 26
• Docket Number: Civil Appeal No. 91 of 2006; Civil Appeal No. 92 of 2006; Civil Appeal No. 93 of 2006
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 31 July 2006

Court of Appeal

Warner, J.A.; Archie, J.A.; Weekes, J.A.

Civil Appeal No. 91 of 2006; Civil Appeal No. 92 of 2006; Civil Appeal No. 93 of 2006

Brown-antoine et al

and

Sharma

Appearances:

Messrs D. Mendes S.C. and S. Young instructed by Ms. G. Jankie and Ms. R. Hosein for the first appellant.

Messrs I. Benjamin and K. Garcia instructed by Ms. Bansee for the second appellant.

Messrs. G. Peterson S.C., K. Garcia and C. Kangaloo instructed by Ms. Bansee for the third appellant.

Messrs A. Fitzpatrick S.C, R. Persad and R. Heffes-Doon instructed by Byrne & Byrne for the respondent.

Judicial review - Leave — Application to set aside — Reasonableness of evidence — No evidence of political interference or abuse of process — No arguable case disclosed against the second and third plaintiffs — Appeals allowed — Leave to apply for judicial review was set aside — Injunctions were discharged.

Judgment:

1 This is a joint judgment of the Court.

2 There are three appeals which all touch and concern the same series of events, applications and orders and which emanate from decisions of the single judge who presided over all relevant proceedings. For ease of comprehension and convenience the three appeals were heard together and we issue one judgment in respect of them all.

3 The matters that give rise to these actions and appeals arise in a particular context and are but the latest chapter in an unfolding narrative. In early 2005, the Director of Public Prosecutions and the Attorney General alleged that the Chief Justice attempted to interfere in an ongoing preliminary enquiry. The issue was referred to the Prime Minister who in turn advised the President under Section 137 (3) of the Constitution to appoint a tribunal to investigate the allegations of misbehaviour. Judicial review proceedings were initiated by the Chief Justice and remain undetermined to date. This state of affairs has generated intense public debate with allegations that the Prime Minister's decision was politically motivated.

4 With these sentiments hanging in the air, a second allegation was made against the Chief Justice on or about 31st March 2006, this time by the Chief Magistrate, who at the relevant time was presiding over the summary trial of the Leader of the Opposition, Mr Basdeo Panday, on charges under the Integrity in Public Life Act. The Chief Magistrate alleged that the Chief Justice had attempted to influence him to give his decision in a particular way. This latter allegation is the springboard for the events, actions and orders that have brought us to this juncture.

5 The first appellant appeals the decision of the judge, dated 17th of July 2006, to dismiss her application to set aside leave granted to the respondent to apply for judicial review of the first appellant's decision. The respondent alleges that the first appellant had decided to institute and/or advised the police to institute criminal proceedings against him in order to carry out the wishes of the Prime Minister and/or the Attorney General.

6 The first appellant seeks to have this Court set aside the leave granted by the judge and as a result to vacate all other orders made by the judge in relation to the appellant.

7 The first appellant's grounds of appeal are as follows:

8 The learned judge was wrong in law:

• i. “in finding that:

  • a. The decision of the Judicial Committee of the Privy Council in Jeewan Mohit v. DPP Privy Council Appeal No 31 of 2005 does no more accept that the exercise of a prosecutorial discretion, in the context of a written constitution, can be subject to review; accepts that the categories identified are not exhaustive and theorises that it would be difficult to conceive of the circumstances where unreasonableness, in Wednesbury sense of the term, or want of natural justice would be unsuccessful [See pg 7 of ruling].

  • b. The question whether the appellant decided to institute or advise the police to institute criminal proceedings was a question of fact, which was not appropriate to be determined on the appellant's application to set aside leave. [See Pg. 9 of ruling]

  • c. Quite apart from the evidence before the Court there had been raised important questions of Constitutional law, which required further consideration and determination by the Court, and this alone was sufficient to justify a refusal to set aside leave. [See pg. 10 of ruling]

• ii. in finding that on the totality of the evidence raised by the respondent the respondent has presented an arguable case to the Court and by so doing had discharged the burden placed upon him on an application to set aside leave. [op. cit]

• iii. in rejecting the appellant's submissions that the appellant's decision/memorandum dated July 10th, 2006 was not conclusive evidence that the appellant did not decide to institute nor advise the police to institute criminal proceedings against the respondent; and iv. in rejecting the appellant's submission that there no evidence put before the Court on the application for leave to support any of the grounds upon which the application for leave was made or any of the relief sought in the proceedings.”

9 The second appellant appeals the decision of the judge, dated 24th July, 2006, to refuse to continue the injunction against him but to continue an injunction against the third appellant in terms that had the effect of negating the judge's decision to refuse to continue the injunction against him.

10 He seeks to have the injunctions granted in respect the third appellant discharged.

11 The second appellant's grounds of appeal are as follows:

1

The learned judge erred in law by failing to find that the respondent had failed to establish an arguable case and/or had failed to adduce sufficient evidence to support the continuation of the injunctions granted on 14 and/or 16 of July 2006 2. The learned judge erred in law by failing to find that the respondent's application for judicial review had no prospect of success on the basis that there was and/or is insufficient evidence to support the respondent's application. 3. The learned judge erred in law in continuing the injunctions granted on 14 and/or 16 of July 2006 by failing to consider whether the respondent had a real prospect of success in his claim for a permanent injunction at the trial of the action; 4. The learned judge was wrong in law in holding that the claimant's challenges were “firmly grounded”. 5. The learned judge was wrong in law in holding that if the injunction were discharged and an arrest upon a warrant endorsed with bail were to follow, the substantive proceedings would thereby be frustrated; 6. The learned judge wrongly applied the following test: that in the public law matter where the defendant party is a public authority, the Courts must take into account the interests of the public in general to whom duties are owed, by holding that the public interest lay in continuing the injunctions granted on the 14 and/or 16 July 2006. 7. The learned judge misdirected herself in law as to the need to protect the Court's process by the grant and/or the continuation of the injunctions; 8. The learned judge was wrong in law in holding that, in these circumstances, the claimant was not required to state the reason or reasons why notice was not given for interim relief pursuant to Rules 17.3(3) of the Civil Proceedings Rules, 1998 (“CPR”); 9. The learned judge exercised her discretion wrongly in invoking Rule 26.8 of the CPR to rectify the claimant's failure to state the reasons or reasons why notice was not given for interim relief pursuant to Rules 17.3(3) of the CPR 10. The learned judge's order was wrong in law. 11. The learned judge's order was against the weight of the evidence.

12 The third appellant appeals the judge's decision, dated 24th July, 2006 to continue injunctions against him and asks this Court to discharge those injunctions.

13 The third appellant's grounds of appeal are as follows:

1

The learned judge erred in law by failing to find that the respondent had failed to establish an arguable case and/or had failed to adduce sufficient evidence to support the respondent's claim for judicial. 2. The learned judge erred in law by failing to find that the respondent had failed to establish an arguable case and/or had filed to adduce sufficient evidence to support the continuation of the injunctions granted on 14th and/or 16th of July 2006. 3. The learned judge erred in law by failing to find that the respondent's application for judicial review had no prospect of success on the basis that there was and/or is insufficient evidence to support the respondent's application; 4. The learned judge erred in law in continuing the injunctions granted on 14th and/or 16th of July 2006 by failing to consider whether the respondent had a real prospect of success in his claim for a permanent injunction at the trial of action. 5. The learned judge erred in law, in law in holding that the claimant's challenges were firmly grounded. 6. The learned judge erred in law in holding that if the injunction were discharged and an arrest upon a warrant endorsed with bail were to follow, the substantive proceedings would thereby be frustrated. 7. The learned judge wrongly applied the following test: that in a public law matter where the defendant party is a public authority, the Courts must take into account the interests of the public in general to whom duties are owed, by holding that the public interest lay in continuing the injunctions granted on the 14th and/or 16th July 2006. 8. The learned judge misdirected herself in law as to the need to protect the Court's process by the grant and/or the continuation of the injunctions. 9. The learned judge was wrong in law in holding that, in the circumstances, the claimant was not required to state the reasons or reasons why notice was not given for interim relief pursuant to Rules...