Kublalsingh et Al v The Attorney General

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Narine, J.A.
• Judgment Date: 08 August 2014
• Neutral Citation: TT 2014 CA 40
• Docket Number: CV2012-03205; C.A. No. P 142 of 2014
• Date: 08 August 2014

Court of Appeal

Narine, J.A.; Smith, J.A.; Moosai, J.A.

CV2012-03205; C.A. No. P 142 of 2014

Kublalsingh et al

and

The Attorney General

Appearances:

Mr. F. Hosein SC, Mr. R.L. Maharaj SC, Mr. R. Dass instructed by Mr. A. Maraj for the appellant.

Mr. R. Martineau SC, Mrs. D. Peake SC, Mr. K. Ramkissoon, Mr. G. Ramdeen, Mr. S. Roberts instructed by Ms. Alexander and Ms. Ramroop for the respondent.

Conservatory Order - Appeal — Application for a conservatory order — Trial judge refuse application for a conservatory order — Unreasonable delay — Preserving the status quo in the exercise of discretion — Disproportional application of the balance of convenience — Damages was not a pre-requisite to the grant of relief — Exercise of discretion.

I have read the judgment of Narine, J.A. and agree with it.

P. Moosai

Justice of Appeal.

Narine, J.A.

1 This is an appeal from an order of the High court made on 7th May 2014, refusing the appellants' application made on 18th September, 2013 for a conservatory order staying the continuation of works on the Debe to Mon Desir segment of the Solomon Hochoy Highway extension project pending the hearing and determination of the appellants' application for constitutional relief.

2 The action was commenced more than one year before by a Fixed Date Claim Form (F.D.C.F.) filed on 3rd August 2012 seeking declarations that the decision to commence or continue the Debe to Mon Desir segment of the highway breached the claimant's rights guaranteed under section 4 of the Constitution to, inter alia life, liberty, the security of the person, enjoyment of property, protection of the law and respect for private and family life.

3 The claimants allege that they are adversely affected by the decision to build the Debe to Mon Desir segment of the highway. Some of them have been served with acquisition notices. Some have homes on the perimeter of the highway. The first claimant however, does not live on or about the highway. He is an environmental activist, and the chief spokesperson for those opposed to the highway.

4 At the time of the hearing of this appeal, there was pending before the High Court an application by the appellants to join five additional claimants who had received acquisition notices and to convert the proceedings into a representative action on behalf of some 300 persons. As it turned out, three of the acquisition notices against the original claimants have been withdrawn, due to an adjustment of the path of the highway. The effect of this was that the only original claimant whose property rights would be affected by the highway, was the second claimant who is in fact the licencee of the legal owner.

5 The judge noted in, his written judgment (para. 100) that the parties agreed that he should “theoretically consider” the constitutional position of persons who owned property in the path of the highway, and that “it was conceded” that he should treat the F.D.C.F. as having already been amended for the purposes of deciding the application. However, in his speaking note before us, Mr. Martineau agrees that his position before the trial judge was that he would not object if the judge considered the application “as though someone who owns property on the path of the Highway was affected”. However, Mr. Martineau submitted that this court should not determine this appeal on the basis that the application for joinder and amendment had been granted, since to do so would be to usurp the function of the trial judge who had not yet determined the application.

6 The facts of this case are voluminous. They are set out in great deal in the judge's written decision. We see no need to rehearse them here. This matter involves the extension of the Solomon Hochoy Highway from Golconda to Point Fortin. For the purposes of construction the project was divided into different segments. The appellants in this case oppose the construction of the Debe to Mon Desir segment along the proposed route. Their claim is based on statements allegedly made by high ranking government officials, including Ministers of Government and the Prime Minister. The appellants contend that their statements gave rise to certain legitimate expectations, inter alia, that the government would review its decision to continue the highway along the proposed route, and that it would abide by the findings of a committee (the Armstrong Committee) set up to review the proposed route of the highway.

7 There is no need to go further into the facts of this case for the purposes of this appeal. Mr. Martineau has helpfully agreed in his submissions that this court should proceed on the basis that the appellants have raised a serious issue to be tried. Mr. Martineau was careful to point out that he was not conceding that the appellants' have in fact made out a case based on legitimate expectations. In fact, he intends to argue against that position, when the substantive issue arises for consideration by the trial judge.

8 In refusing the application for the conservatory order, the trial judge followed the Privy Council decision in Belize Alliance of Conservation Non-Governmental Organizations v. The Department of the Environment and anor. [2003] U.K.P.C. 63, (the Bacongo case) in which the Board applied the principles laid down by the House of Lords in American Cyanamid Co. v. Ethicon [1975] A.C. 396, for the grant of interlocutory injunctions. Applying those principles, the judge found that the appellants had raised a serious issue to be tried, but the balance of justice favoured the respondent. The judge further found that the appellants had been guilty of unreasonable delay in applying for an interim conservatory order which he described as “an exceptional discretionary constitutional remedy”.

9 In considering the balance of justice the judge took into account the scale of the financial loss to the state, the tremendous burden to the taxpayers, the burden of “offensive traffic” faced by thousands of motorists, the rights of third party sub-contractors, and the absence of an undertaking in damages.

10 The appellants have submitted that the judge was wrong to apply the American Cyanamid principles to this case. They distinguish the Bacongo case on the basis that the Board was dealing with the grant of an injunction in the context of a judicial review application. The instant application involves a constitutional motion and the conservatory order was to preserve the status quo in order to ensure that the rights protected by the Constitution are not destroyed before the substantive matter is heard. The appellants further submitted that the application is grounded in section 14(2) of the Constitution which gives the High Court an original jurisdiction to make such orders as it sees fit for the purpose of protecting and securing the constitutional rights of the appellants. As such, the court is not fettered by the usual principles that apply under the general law for the grant of interlocutory injunctions. In addition, since the appellants are not invoking the equitable jurisdiction of the court, such matters as delay in making the application, do not arise.

11 In support of this proposition, the appellants relied heavily on the decision of this court in Attorney General v. Sumair Bansraj (1985) 38 W.I.R. 286. In Bansraj this court recognised that it was prevented by section 22(2) of the State Liability and Proceedings Act, Chap. 8:02, from granting an interlocutory injunction against the State, a Minister, or officers of the State. However, the court considered that if the State could not be prevented from destroying or disposing of the respondent's property until the determination of the constitutional proceedings, the object of the constitution would be defeated in the event that the respondent succeeded in asserting his right to the enjoyment of his property. In those circumstances, the court fashioned a remedy, which it called a “conservatory order” for the purpose of preserving the property and maintaining the status quo pending the determination of the motion. Kelsick, C.J. (at 291 H) expressly recognised that although the order was not called an injunction, it might be argued that the effect was the same.

12 The terms of the conservatory order were formulated by Brathwaite, J.A. The order directed both parties to undertake that no action of any kind would be taken to enforce their respective rights until the determination of the originating motion (at 302 F). Brathwaite, J.A. further directed that in the exercise of its discretion under s. 14(2) of the Constitution the High Court would be required to deal expeditiously with the application inter partes, and to set down the substantive motion for hearing within a week of the grant of the conservatory order, and that the motion should be heard forthwith (at 302 H).

13 It is now well established that the principles for the grant of interlocutory injunctions that were devised by Lord Diplock in the American Cyanamid case, apply in public law matters: R. v. Secretary of State for Transport Ex parte Factortame Ltd. [1990] 1 A.C. 603, Chief Fire Officer and Public Service Commission v. Elizabeth Felix-Philip & ors. (unrep.) Civ. App. No. S. 49 of 2013, and the Bacongo case (supra).

14 As recognised by both Braithwaite, J.A. and Persaud, J.A. in Bansraj (supra.) at 299G and 305G), constitutional motions fall within the realm of public law. However, the appellants distinguish the authorities cited in paragraph 13 above on the basis that they were based on applications for judicial review, and submit that constitutional motions are sui generis and the court's power under section 14(2) of the Constitution ought not to be fettered by the general common law principles for the grant of interlocutory injunctions, and principles pertaining to the equitable jurisdiction of the court. In fact, Mr.Maharaj has...