Jorsingh v Attorney General of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Edoo J. |
| Judgment Date | 06 December 1985 |
| Neutral Citation | TT 1985 HC 174 |
| Docket Number | No. 2048 of 1984 |
| Court | High Court (Trinidad and Tobago) |
| Date | 06 December 1985 |
High Court
Edoo, J.
No. 2048 of 1984
Mr. R. L. Maharaj for the applicant.
Mrs. Gladys Gaffoor, Deputy Solicitor General, with her Mr. Theodore, State Counsel, for the respondent.
Constitutional Law - Civil rights — Constitution of Trinidad and Tobago, s.5(2)(e) — Whether process of delivering a judgment within a reasonable time is implied in a right to a fair hearing — Finding that applicant was denied equality of treatment and the protection of the law by failure of Industrial Court to deliver its decision within a reasonable time, thereby infringing applicant's rights under s.4(b) and s.5(2)(h) of the Constitution.
The applicant, who at the material time was a member of the Transport and Industrial Workers Trade Union, was employed by the National Brewing Company as an Assistant Operator. He was dismissed by the Company on the 11th March, 1977, on the ground that the company had lost confidence in him and that his conduct was unsatisfactory. The Union commenced proceedings on his behalf before the Industrial Court (Action 91/77) and the hearing of the matter was concluded on the 5th July, 1978.
At paragraphs 4 and 5 of his affidavit in support of his application, he has deposed that despite several requests both oral and written to the said court for judgment to be delivered, the said court had failed and/or refused and/or neglected to deliver the said judgment. His oral requests were made to the officials of the Registry of the Industrial Court and with the exception of Mr. Noor Mohammed, he could not recall the names of the others. He was informed at all times that the matter was receiving attention. Among the requests made was one addressed to the Ombudsman and another to the President of the Industrial Court dated the 17th January, 1984 and 17th August, 1983 respectively. Copies of these requests are exhibited to the applicant's affidavit.
Apparently, galvanized into action by the institution of this suit, the Notice of Motion having been filed on the 29th October, 1984, the Industrial Court delivered its decision on the 25th January, 1985. A copy of the judgment is attached to the affidavit of Newton James, the Registrar of the Industrial Court, sworn to on the 21st February, 1985 and filed the following day.
No attempt has been made by the respondent to answer the allegations made in the applicant's affidavit, i.e. the inordinate delay in delivering the judgment, a period of approximately six and a half years having elapsed from the conclusion of the hearing to the date of the delivery of the judgment.
An examination of the judgment reveals that a simple analysis of facts would have been all that was necessary to arrive at a judgment in the terms of that delivered. To my mind, a period of two to four weeks would have been sufficient to arrive at such a decision, depending of course on any circumstances, which would have occasioned delay.
The argument of counsel for the respondent that the judgment having been-delivered the applicant cannot now complain as his cause of action has been satisfied, is misconceived. This is not an action in private law against the Industrial Court and I perceive that no such action could have been brought against that court for its delay in delivering a judgment. It is an application against the State, under the fundamental rights provision in the Constitution for the violation of the applicant's rights as stated in his notice of motion.
That a claim of the nature of that sought in these proceedings can be brought under the fundamental rights provision of the Constitution against the State for what a judge of the High Court of Justice does in the execution of his duties has been well settled since the decision of the Privy Council in Maharej v The Attorney General of Trinidad and Tobago (No. 2) [1978] 2 All E.R. 670. At p. 677, Lord Diplock stated: –
“The order of Maharej J. committing the appellant to prison was made by him in the exercise of the judicial powers of the State: The arrest and detention of the appellant pursuant to the judge's order was effected by the executive arm of the State. So if his detention amounted to a contravention of his rights under S. 1(a) it was a contravention by the State against which he was entitled to protection.”
According to section 7 of the Industrial Relations Act, Ch. 08–01, the Industrial Court is deemed to be a superior court of record. Applying the principles derived from Maharaj's case (supra), I do not believe it can be disputed that the Industrial Court is comprised within the judicial arm of the State. No objection to the jurisdiction of this court in hearing this matter has been raised by the State.
The applicant has invoked Section 4(a) as particularised in sections 5(2)(e) and 5 (2)(h) of the Constitution. He has abandoned claims made under other sections of the Constitution to which he has referred in his Notice of Motion.
Section 4 protects his right to equality before the law and the protection of the law while Sections 5(2)(a) and 5(2)(h) protect his rights respectively to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations and to his entitlement to such procedural provisions as are necessary for the purpose of giving effect and protection to the rights and freedoms enshrined in Sections 4 and 5 of the Constitution.
Counsel for the applicant submits that the applicant was denied a fair hearing for the determination of his rights and to the procedural provisions for giving effect to such rights. He submits that the right to protection of the law involves the right to apply to the court for such remedy as the court gives him; that when he applies for that remedy he is entitled to have his matter heard and determined in accordance with the principles of fundamental justice and that inherent in that right is the right to have his matter determined within a reasonable time. The attack is upon the time it took to have the matter determined. A fair hearing, counsel argues, involves the hearing and determination of a matter within a reasonable time and that when that when a matter is heard, a judgment ought to be given within a reasonable time.
The law reports are replete with judgments containing adverse comments upon delays of various kinds occurring in the hearing of court matters and the administration of the law and justice generally. Disapproval of delays has found expression in the maxim “Justice delayed is justice denied.” The remedies in private law vary from admonishment of the offending party to the award of costs to the injured parties. In some cases delay constitutes a complete defence as in the Defence of laches.
In Privy Council Appeal No. 13 of 1983, Joyce Lynch v. Joseph Christopher Lynch, an appeal from Trinidad and Tobago, Lord Scarman, in delivering the reasons for the decision of the Board commented upon a delay of ten years from the inception of a matrimonial suit to its final determination. At p.2, His Lordship states as follows: –
“Their Lordships do not know the causes (for they suspect there are more than one) of this intolerable delay — ten years all but for a few months between initiation of suit and determination of the appropriate financial provision for the wife. But it is unacceptable, being a severe injustice to both parties ….”
The Industrial Relations Act, Ch. 88:01 under which the Industrial Court was established is an Act passed in accordance with the provisions of Section 13(2) of the Constitution providing for its passage in both Houses of Parliament by a three-fifths majority in each House making it effective, notwithstanding Sections 4 and 5 of the Constitution, i.e. the provisions protecting the fundamental rights and freedoms of the individual. Notwithstanding the recognition that certain of these rights and freedoms might be infringed under the Act, it nevertheless makes provision for the protection of other rights or entitlement of the parties to an industrial dispute. Thus in section 11(c) it provides for the court “to give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the trade dispute or any other matter before it.”
A similar provision, which appears to be mandatory in substance, appears in section 17, which requires, viz.: –
“17. The court shall expeditiously hear, inquire into and investigate every dispute ….” (emphasis added)
Implicit in these provisions, even though it is now here specifically stated, is the requirement that the court should deliver its judgment within a reasonable time. Failure to do so, it would appear to me would render the provisions for an expeditious hearing ineffective. A tardy judgment, which is delayed for an unreasonable length of time, would defeat the purpose of section 17 of the Act. Further; Section 10(4) of the Act provides that notwithstanding any rule of law to the contrary, the court may, in any dispute concerning the dismissal of a worker “inter alia” order the re-employment or re-instatement of a worker in his former or a similar position or the payment of compensation or damages.
The Industrial Court found (see p. 6 of its judgment) that the dismissal of the applicant in the circumstances was harsh and oppressive and awarded him compensation in the sum of $3,000.00.
It is reasonable to assume that had the judgment been delivered within a reasonable time of the conclusion of the hearing, the court would have ordered the...
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