Lai v The Attorney General

JurisdictionTrinidad & Tobago
JudgeMoosai, J.A.,.
Judgment Date09 December 2014
Neutral CitationTT 2014 CA 53
Docket NumberCiv. App. No. P129 of 2012; H.C.A 3367 of 2003
CourtCourt of Appeal (Trinidad and Tobago)
Date09 December 2014

Court of Appeal

Weekes, J.A.; Yorke-Soo, J.A.; Moosai, J.A.

Civ. App. No. P129 of 2012; H.C.A 3367 of 2003

The Attorney General

Mr. F. Hosein S.C, Mr. M. Quamina and Mr. A. Bullock on behalf of the appellant.

Mr. R Martineau S.C, Mr. G. Ramdeen and Ms. A Ramsook on behalf of the respondent.

Judicial Review - Appeal — Decision of cabinet not to advise His Excellency the Preside to reappoint the appellant — Cabinet — Reappointment of appellant as a member of the industrial Court — Legitimate expectation — Illegality — Irrational — Unreasonable — Separation of powers — Independence of the Judiciary — Constitution — Appeal fails.

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

P. Weekes

Justice of Appeal

I too, agree.

A. Yorke-Soo Hon Justice of Appeal

Moosai, J.A.

This matter concerns an appeal against the trial judge's decision in judicial review proceedings regarding a decision of the Cabinet of Trinidad and Tobago. It was the Cabinet's decision not to advise His Excellency the President of Trinidad and Tobago to reappoint the appellant as a member of the Industrial Court of Trinidad and Tobago. Essentially, the appellant contended that that decision was illegal, in breach of the appellant's legitimate expectation, irrational and in violation of the doctrine of separation of powers. The trial judge dismissed the appellant's application. The appellant now appeals against the entirety of the judge's decision.


On the issue of illegality, I have concluded that it was within the power of the Cabinet (the recommendation having been made by the respondent) to advise the President of Trinidad and Tobago as to whether the appellant should be reappointed. Where, as in this case, the President of the Industrial Court makes a recommendation of reappointment on behalf of a member, that recommendation must be fairly taken into consideration by Cabinet when the member is being considered for reappointment. However, the Cabinet is not statutorily obliged to accept that recommendation.


Regarding the appellant's contention that the decision was in violation of the separation of powers, upon consideration of the authorities, I am of the view that ss. 4(3)(c) and 5(1) of the Industrial Relations Act (IRA) [Chap. 88:01] are neither in violation of the doctrine of separation of powers nor of the fundamental human rights protected under ss. 4 and 5 of the Constitution of the Republic of Trinidad and Tobago (the Constitution) [Chap. 1:01]. In my view, having regard to the safeguards which are in place, the degree of protection given to the Industrial Court is, and can be reasonably perceived and regarded as, satisfactory, despite the involvement of the executive in the appointment and reappointment process.


In respect of the issue of irrationality, I can find nothing unreasonable or irrational in the respondent's decision. The evidence shows that the respondent fairly considered the appellant for reappointment, but was unable to override the relevant consideration that the industrial climate at the time only required one accountant and there was already sitting in the membership another accountant whose term of appointment was still active. I cannot dispel this consideration as one which is unreasonable or irrational.


Finally, in relation to the appellant's appeal on the basis of legitimate expectation, having assessed the evidence before me, I cannot come to the conclusion that there was a regular practice that was clear, unambiguous and devoid of qualification that a member would always be reappointed for at least a second term based on the criteria which the appellant set out. Nor have I found any foundation in the evidence for a legitimate expectation of consultation with the appellant regarding the decision to reappoint.


For these reasons which I have canvassed hereinafter, I affirm the decision of the trial judge.

B. Summary of facts.

The respondent is the Attorney General of Trinidad and Tobago. The respondent in the instant matter is the person who recommends to Cabinet the persons to be appointed or reappointed as members of the Industrial Court.


The appellant is a qualified chartered accountant. In February 2000, he responded to a newspaper advertisement for the post of member of the Industrial Court. In April 2000, he attended an interview. The interview panel comprised the President, the Vice-President and the Chairman of the Essential Services Division of the Industrial Court. The appellant was successful and the President of the Republic of Trinidad and Tobago, acting in pursuance of s. 4(3)(c) of the IRA, appointed the appellant as a member of the General Services Division of the Industrial Court, with effect from 23 October 2000. The appellant's instrument of appointment recited the material part of s. 5(1) of the IRA (including eligibility for reappointment), and indicated that his appointment was for a period of three years. Section 5(1) of the IRA provides that:

“The members of the Court appointed, other than under section 4(3)(a)(i), shall be paid such salaries as the President of Trinidad and Tobago may determine, and shall hold office for such period, being not less than three or more than five years as is specified in their respective instruments of appointment, but shall be eligible for reappointment.” [emphasis added]


Four other persons were appointed first-time members of the Industrial Court together with the appellant, namely, Mr. Ramchand Lutchmedial (Attorney-at-Law), Mrs. Sandra Ramparas (Attorney-at-Law), Mrs. Judy Rajkumar-Gualbance (Economist) and Ms. Bindimattie Mahabir (Industrial Relations Expert). Each of these persons, as well as the appellant, was eligible for reappointment upon expiration of their three year appointment.


In July 2003, the appellant's three year term of appointment was just a few months away from expiration. Therefore, the appellant, by letter dated 4 July 2003, informed the President of the Industrial Court of his interest in being considered for reappointment. The President acted on the appellant's letter by submitting a letter to the respondent, recommending the renewal of the appellant's appointment for a period of five years. The President of the Industrial Court then orally informed the appellant that he made the recommendation.


With respect to the practice concerning reappointment, the President of the Industrial Court noted at para. 5 of his affidavit that:

“As President of the Court, I have and exercise supervisory powers over all of the members of the Court; as well, I have the responsibility, within my discretion, for making recommendations for the renewal or continuation in office of such members.”

He further stated that:

“.the practice regarding reappointment of members of the Court (other than the President) is that Notes of Cabinet are prepared by the Permanent Secretary in the office of the Attorney General on occasions when the Attorney General chooses to make a recommendation for re-appointment. Thereafter, a Cabinet Minute is forwarded to the Registrar of the Industrial Court announcing Cabinet's agreement to any re-appointment and stating for what period. This is followed by an Instrument of Appointment under the hand of the President of Trinidad and Tobago” [See the affidavit of the Honourable Addison Masefield Khan, [9], 44 to 45 of the Record of Appeal].


The President of the Industrial Court did not receive any response from the respondent on the matter of the recommendation. Therefore, by letter dated 22 October 2003, he advised the President of Trinidad and Tobago that the appellant should be permitted to continue in office for a period of three months, after the end of his term, in accordance with s. 4(9) of the IRA. His Excellency the President of the Republic of Trinidad and Tobago immediately responded, by letter of the same date, informing the President of the Industrial Court that the appellant would be permitted, pursuant to s. 4(9) of the IRA to continue in office for a period of three months from 23 October 2003 “to enable [him] to deliver judgment or to do any other thing in relation to the proceedings that were commenced before [him] before [his] term of office expired” [See letter from His Excellency the President of Trinidad and Tobago, dated 22 October 2003, 27 of the Record of Appeal].


The appellant's term of office as a member of the Industrial Court expired on 22 October 2003. Apart from the letter of 22 October 2003, there was no further correspondence with the appellant regarding his status as a member of the Industrial Court or of the interest he expressed in being reappointed to the Industrial Court.


It appears from the evidence that the appellant was not, at first, concerned that his term of office had not been renewed for the following reasons: (i) there was no advertisement inviting applications to fill the vacancy created by the expiry of his term of office on 22 October 2003; (ii) he observed that, in the past, members received their instruments of reappointment after their terms of office had expired and that, prior to those reappointments, there were also no advertisements inviting applications; (iii) he further observed, during his tenure, that all members of the Industrial Court (save for one member who was over 70 years at the material time) whose terms had expired were reappointed to the Industrial Court; and (iv) he was not told of any adverse complaints or reports made against him during his term of office, nor of any allegations of misbehavior or any matter or cause adverse to him that could have resulted in his removal from office under s. 4(8) of the IRA and ss. 106, 136 and 137 of the Constitution.


The appellant also gained comfort from the fact that the President of the Industrial Court assigned him to be a conciliator...

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