James v the Attorney General
| Jurisdiction | Trinidad & Tobago |
| Judge | Kokaram, J. |
| Judgment Date | 11 July 2013 |
| Neutral Citation | TT 2013 HC 140 |
| Docket Number | CV 1916 of 2013 |
| Court | High Court (Trinidad and Tobago) |
| Date | 11 July 2013 |
High Court
Kokaram, J.
CV 1916 of 2013
Mr. Vashist Maharaj for the claimant.
Mr. Lee Merry and Ms. Coreen Findley instructed by Ms. Amrita Ramsook for the defendant.
Constitutional Law - Fundamental rights and freedoms — Right to protection of the law — Right to privacy and family life — Freedom from arbitrary detention — Whether detention and incarceration for offence of murder was unconstitutional.
Matthew Kenrick James (the claimant) a gardener and fishmonger from Tobago, filed a constitutional motion against the defendant seeking relief for breaches of his fundamental rights under the Constitution of Trinidad and Tobago. Those rights are his “due process” rights, the right to the protection of the law, the right to privacy and family life and freedom from arbitrary detention, imprisonment or exile. These rights he claimed were breached by police officers of the State in detaining and incarcerating him for the offence of murder of his uncle, one John James.
The claimant contends that he was falsely detained and imprisoned by officers of the State on two occasions in relation to this offence. The first period of detention occurred between the 17th March 2005 to Sunday 20th March 2005 when he was detained at the Scarborough Police Station for questioning in relation to the said murder. The claimant claims that he had learnt of the murder of his uncle on 17th March 2005 and went to the Scarborough Police Station to clear his name. He was however arrested. While in custody he gave a statement as to his whereabouts on 16th March 2005, the day of the murder, to the effect that he did encounter Mr. James who had a verbal altercation with him. He then left home to go to “the bush to pray” and when he returned he learnt of the murder. The claimant was eventually released without being charged for any offence. During that period he claims that the investigating officer Sergeant Adams fraudulently induced the Court to issue two search warrants to search his home and that of his mother. Subsequently articles of clothing belonging to him were submitted to the Trinidad and Tobago Forensic Centre for analysis.
The second period of detention occurred during the period 31st December 2005 to 13th May 2009. On 31st December 2005 he was re-arrested for the same offence. An information was laid against him for the murder of John James. He was prosecuted for the offence and 11 witnesses in support of the prosecution were called at the Preliminary Inquiry conducted by Her Worship Senior Magistrate Annette Mc Kenzie. As he was charged for a non bailable offence he remained incarcerated for the duration of the Preliminary Inquiry. The claimant contends that there was absolutely no evidence on which he could have been charged. There were three statements obtained from witnesses who implicated the claimant in the murder. However at the Preliminary Inquiry those witnesses denied that they gave any of the alleged statements to the police. Two of the witnesses were treated as hostile witnesses during the Preliminary Inquiry. The claimant's attorney successfully made a no case submission and the claimant was discharged. The claimant contends that the evidence of the prosecution was fabricated and from the outset lacked any basis in fact or law to substantiate the information laid against him and was in fact a malicious and illegal act.
Subsequent to his discharge, the claimant states that he encountered great difficulty readjusting to life after his detention and his livelihood as he knew it, was destroyed. He was now impecunious as his savings was used to defend himself in the matter. His house was vandalised while he was away. His garden by which he earned his income was overgrown due to the fact that it was unattended to while he was in prison. Due to his impecuniosity he was forced to live with his mother.
As a result of the unsuccessful prosecution, the claimant seeks damages inclusive of exemplary damages and a declaration that his arrest and detention was unconstitutional and illegal. Counsel for the claimant submitted that both periods of detention must be examined holistically as a pattern of oppressive and malicious conduct meted out to the claimant on the part of the officers of the State. The claimant also seeks a declaration that the two search warrants issued by the Magistrate were illegal, void and unconstitutional.
6. Before the hearing of the first Case Management Conference, the defendant filed an application to strike out the claimant's claim pursuant to Part 26.2(1)(b) of the Civil Proceedings Rules 1998 as amended (CPR) as constituting an abuse of the process of the Court on the ground that:
“A claim for redress under the Constitution cannot be maintained in the circumstances of this case, where the claimant's grievance was susceptible to adequate redress by a timely application to the court under its ordinary, non-constitutional jurisdiction.”
At the first Case Management Conference the Court heard brief arguments on whether this claim was really a claim for false imprisonment and malicious prosecution and not genuinely a claim for constitutional relief. The claimant subsequently filed written submissions and further oral submissions were made by the parties. Essentially the defendant submitted that there is a parallel remedy available to the claimant for damages for the tort of false imprisonment, malicious prosecution and the malicious procurement of a warrant. Relying on Harrikisson v. AG [1980] A.C. 265; Thakur Persad Jaroo v. The Attorney General of Trinidad and Tobago [2002] 1 A.C. 871; Attorney General of Trinidad and Tobago v. Siewchand Ramanoop PCA 13 of 2004 the defendant contended that resort therefore to a claim for the infringement of a constitutional right in light of these alternative common law remedies is an abuse. Further there is no cogent explanation for the delay in commencing these proceedings. See Felix Durity v. The Attorney General of Trinidad and Tobago [2002] U.K.P.C. 20. Additionally it contended that this is a complex matter where the facts as alleged by the claimant will be hotly contested and not suitable to the summary procedure of a constitutional motion.
The claimant however countered that the availability of alternative remedies does not on its own make resort to the “constitutional court” an abuse. There must be special features and genuine breaches of the constitutional right. In this case the claimant contends that there is no dispute on the facts which demonstrate clearly an arbitrary malicious and oppressive abuse of state power. He also contends that no adequate means of redress exists in common law. He contends that the preliminary enquiry is a ministerial act and not a judicial function and therefore a discharge at a preliminary enquiry cannot be described as a termination of a prosecution in the claimant's favour as an acquittal. As a result there is a missing element in the tort of malicious prosecution. On the question of delay it was submitted that the claimant's impecuniosity was the cause for the delay.
I am cognizant of the fact that the Court should not lightly strike out claims alleging an abuse of state power which are in breach of citizens' fundamental rights. Similarly the Court's process cannot be abused so that claims that are not a bona fide resort to rights under the Constitution or which seek to raise stale claims ought to be rejected. In this case the claimant was discharged at the Preliminary Inquiry in May 2009. The constitutional motion complaining of alleged breaches of his fundamental rights as a result of that prosecution was filed some four years later. I am not convinced that the claimant has adequately explained the reason for this delay. Nor in my view is there any attempt by the claimant to do so in his affidavit. The Claim on this ground alone is an abuse of the process and should be struck out. Additionally I am of the view that this is not a genuine resort to the Court to seek relief for breaches of his fundamental rights. The claimant plainly had available to him the common law actions in tort to ventilate his claim of the alleged abuse of state power. The motion in my view is a device to circumvent the limitation period for the common law action for false imprisonment arising from his initial incarceration in 2005, the malicious procurement of a search warrant in 2005 both of which actions are now statute barred. At the time of filing the claim the claimant could still have filed an action for malicious prosecution but he would not have been able to recover any damages for the initial period of detention and the issue of the search warrants. The motion is a dressed up common law action, a contrived invocation of the facilities of constitutional redress and is a plain abuse falling squarely within the admonishment of such strategies as explained by the Privy Council in Jaroo. For these reasons which are amplified in this judgment I dismiss this claim as an abuse of process.
The nub of the claimant's case is set out in paragraph 2 of the Claim Form:
“That the defendant without reliable evidence wrongly by his servants or agents detained the claimant at the Scarborough Police Station from Thursday 17th March 2005 to Sunday 20th March 2005, infringing his rights and freedom. That on the 31st December 2005 by information laid in the County of Tobago alleging that the claimant had murdered John James the claimant was rearrested and kept in custody at the District Prison Tobago from 31st December 2005 to 13th May 2009. The claimant was kept in custody and maliciously prosecuted for the murder of John James in the absence of any credible evidence to substantiate the allegation. That on the 13th May 2009 the Prosecutor conceded that they had failed to make out a prima facie case...
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