Mitchell v The Commissioner of Police et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Permanand, J. |
| Judgment Date | 19 December 1991 |
| Neutral Citation | TT 1991 HC 239 |
| Docket Number | 915 of 1991 |
| Court | High Court (Trinidad and Tobago) |
| Date | 19 December 1991 |
High Court
Permanand, J.
915 of 1991
Mr. J. Aboud for applicant.
Miss L. Ramoutar for respondents.
Judicial review - Certiorari — Application to quash decision of the Commissioner of Police which purported to revoke the applicant's appointment as an Inspector of the Special Reserve Police — applicant was charged with an indictable offence — Whether applicant had right to a hearing — Audi alteram partem rule — Whether commissioner acted properly under Special Reserve Police Act, Chap. 15:03 s.12 — Whether commissioner needed to have reasonable cause or could revoke applicant's appointment at pleasure — Revocation not for reasonable cause and therefore unlawful — Order for damages to be assessed.
Pursuant to the leave granted by Justices of Appeal Davis, Ibrahim and Goopeesingh on July 15, 1991 the applicant flied the Notice of Motion in this matter on July 16 1991 fixed for hearing on July 26, 1991 and on July 17, 1991 filed an amended Statement in support of the application for leave and sought the following relief:–
“(a) An Order of Certiorari quashing the decision of the Commissioner of Police contained in a memorandum dated the 17th of December, 1990 but served on the applicant on the 10th January, 1991 which purports to revoke the applicant's Precept and/or appointment as an inspector of the Special Reserve Police
(b) A Declaration that the purported revocation of the applicant's Precept and/on appointment is null, void and of no effect;
(c) A Declaration that any acts done in pursuance of the said purported revocation of the Precept and/or appointment and, in particular the taking the applicant's kit and equipment or the cancellation of the applicant's Precept by the Commissioner of Police, his servants and/or agents is null, void and of no effect
(d) A Declaration that the applicant is not in breach of s.14(1) of the Special Reserve Police Act Chap. 15:03 Alternatively;
(e) Damages; or further or alternatively, exemplary damages,
(f) An Order that costs be provided for.”
The Grounds on which the relief is sought are set out in the amended Statement and are as follows:–
“(a) The applicant, an Inspector of the Special Reserve Police, was charged with rape on the 20th July, 1989 before His Worship; Magistrate Langley Baiju in the Sangre Grande Magistrates Court.
(b) The applicant pleaded “Not Guilty” and gave no oral evidence at the Preliminary Inquiry. On the 13th October 1990 the applicant was committed to stand trial at the next Assizes by the said magistrate the also reduced bail from $25,000.00 to $3,000.00.
(c) By a memorandum to the applicant dated the 5th November, 1990 referenced ‘Revocation of Precept’ the Commissioner of Police indicated his intention to revoke the Precept of the applicant on the grounds that the applicant's ‘conduct which resulted in the (said Magistrates Court) action tarnishes the image of the Police Service’. The said memorandum directed the applicant to address the Commissioner as to why the Precept should not be revoke.
(d) By letter date the 22nd November, 1990 the applicant wrote the Commissioner of Police proclaiming his innocence to the said accusation of rape and indicated that his committed to stand trial did net impute his guilt.
(e) On the 10th January, 1991 the applicant received a memorandum from the Commissioner of Police dated the 17th December, 1990 referenced ‘Revocation of Precept’ which purported to.
(i) revoke the applicant's appointment as a member of the Special Reserve Police with effect from the 4th December, 1990;
(ii) command the applicant to deliver up all items of kit and equipment issued by the Special Reserve Police.
(f) The said purported revocation and all consequences therefrom arising are void, or alternatively, voidable on the ground that the Commissioner of Police committed an error of law in relying on the applicant's committal.
(h) The said purported revocation and all consequences thereof arising are void on the ground that the Commissioner acted Ultra Vires The Special Reserve Police Act Chap. 15:03.
(i) The said purported revocation and all consequences therefrom arising are void or alternatively voidable on the ground that the same are contrary to the rules of Natural Justice for which the applicant had a legitimate expectation.
(j) The said purported revocation and all consequences therefrom arising are void or alternatively voidable on the ground that the Commissioner of Police acted in excess of his Jurisdiction.
(k) The applicant is an extremely effective and respected Officer of the Law having risen to the rank of Inspector in only 9 years and denies having tarnished the image of the Special Reserve Police by any alleged and/or disputed act or conduct. –The applicant is paid the quarterly sum of approximately $1,500.00 salary, depending on the number of hours he is called out to duty.
(l) Upon receipt of the said memorandum on the 10th January, 1991 the applicant sought the advice of the attorney at law, who was a practitioner at the criminal bar, representing him in the Magistrate's Court. Having been advised to contact a practitioner with civil experience the applicant retained Mesdames H.A. ALVES & CO. who, taking instructions and seeking the advice of attorney, dispatched a letter to the Commissioner of Police dated the 8th February, 1991.
(m) Subsequent to the delivery of the said letter the applicant formed the view that he should hold his hands on any legal action pending the reply from the Commissioner of Police. No reply has to date been delivered but on two occasions in or around the last week of February, 1991 Police Officers arrived at the applicant's home, when he was absent, claiming that they had orders to retrieve his kit and equipment. The applicant has now formed the view that Legal Action is imperative and has promptly brought this application for Judicial Review.”
By Notice filed on July 26, 1991 the applicant relied on the affidavits filed on March 8 1991 and July 16, 1991 in support of the Motion filed on July 16, 1991.
On August 15, 1991 the respondent — the Commissioner of Police — filed an affidavit and on October 7, 1991 the applicant sought leave to file an affidavit in reply and which was filed by one Lall Victor, Special Reserve Police No. 2372 on October 25, 1991.
On October 29, 1991 counsel appearing on behalf of the applicant sought leave to discontinue the proceedings against the Attorney General. Counsel referred to C.A. 109/85 Bobb Sooknanan The Conservator of Forests, the Minister of Agriculture, Lands and Food Production and the judgment of Persaud, J.A. in which the learned judge stated that proceedings for judicial review should not be brought against the Attorney General. At p.14 Persaud, J.A. stated:– “…prerogative remedies do not lie against the Crown, since it is at the suit of the Crown that they are sought… In my judgment the respondents were the proper parties and the judge was wrong to remove them from the motion paper and substitute the Attorney General.”
Also H.C.A. 1999/86 Beshpati Gunness v. Magistrate Langley Baiju and the Attorney General where it was held that the Attorney General was wrongly joined in the proceedings.
Attorney for the respondents did not seek costs and accordingly the matter proceeded against the first named respondent.
The applicant in his affidavit filed on March 8, 1991 deposed that he is an Auditor employed at the Ministry of State Enterprises, Tourism and Co-operatives as Co-operative Officer II with special responsibilities for the auditing Co-operatives Societies in the County of St Andrew-St. David and that he is also on a part-time basis an Inspector of Special Reserve Police having joined the Special Reserve Police Force in June 1975. As a part-time officer he was assigned roster duties at various police stations and work either the 6.00 p.m. — 10.00 pm shift or 7.00 p.m. 11.00 p.m., shift or an average of three (3) days per week and receives quarterly the sum of approximately one thousand five hundred dollars $1,500.00).
At paragraphs 11 and 12 of his affidavit the applicant deposed with regard to charge of rape which was brought against him on July 20, 1989, and that the Preliminary Inquiry began sometime in August, 1989, that on October 13, 1990 he was committed to stand trial at the Assizes and is now on bail in the sum of five thousand dollars ($5,000.00
At paragraph 14 of his affidavit the applicant deposed that the aforementioned charge is alleged to have been committed while he was off duty and accordingly there is no allegation made against him of committing any act while wearing his uniform or used his office in obtaining any influence whatsoever.
However, around the second week of November 1990 the applicant deposed at paragraph 15 of his affidavit that he received a memorandum dated November 5, 1990 signed by the Commissioner of Police — Exhibit “C.M.3” — and is as follows:–
“As a consequence of a prima facie case of rape made against you at the Sangre Grance Magistrates' Court on October 31, 1990, it is my intention to revoke your Precept in accordance with section 12 of the Special Reserve Police Act Chapter 15:03.
I am to point out that your conduct which resulted in the above action, tarnishes the image the Police Service.
However, I am giving you the opportunity within fourteen (14) days after receipt of this Notice, to address me on the subject why your precept should not be revoked.”
Accordingly, the applicant replied by letter dated November 22, 1990 — Exhibit “C.M.4” as follows:
“I thank you for your letter of the 5th instant. I wish to go on record as stating that I am not guilty of the offence charged and that my conduct has in no way tarnished and/or compromised the image of the Police...
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