Nicholas Rampersad v The Cabinet of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Madame Justice Joan Charles |
| Judgment Date | 19 July 2023 |
| Neutral Citation | TT 2023 HC 211 |
| Docket Number | Claim No.: CV2021-03954 |
| Court | High Court (Trinidad and Tobago) |
In the Matter of An Application for Leave to Apply for Judicial Review Pursuant to Part 56.3 of the Civil Proceedings Rules, 1998 and Pursuant to Section 6(1) of the Judicial Review Act, Chapter 7:08
THE HONOURABLE Madame Justice Joan Charles
Claim No.: CV2021-03954
IN THE HIGH COURT OF JUSTICE
Applicant/Intended Claimant: Mr. Ramlogan (SC), Ms. Lutchmedial instructed by Ms. Madhosingh and Mr. Siewsaran
1 st Respondent/Intended Defendant: Mr. Hosein (SC), Ms. Rahaman instructed by Ms. Joseph
2 nd Respondent/Intended Defendant: Mr. Hosein (SC), Ms. Rahaman instructed by Ms. Joseph
This is a rolled-up hearing of an Application for Leave for Judicial Review. The main issue is whether there was delay or unreasonable delay by the Respondents in advising the Office of the President to issue a Writ of Elections for the bye-elections for the electoral district of Debe South in the Penal/Debe Regional Corporation (“the PDRC”). Since the filing of this claim, the election has been called. The Applicant modified his claim for Relief to take this fact into account.
The Applicant sought the following Reliefs:
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a. An order that time be and is hereby enlarged for making this claim for Judicial Review;
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b. An order that Leave be and is hereby granted to apply for Judicial Review; and
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c. Orders for the following Declaratory Relief:
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i. A Declaration that the failure and/or refusal of the Cabinet and/or the Minister of Rural Development and Local Government (“the Minister”) acting under the general authority of the Cabinet to inform the Office of the President that the seat of the Councillor for Debe South in the PDRC had become vacant since February 22, 2021 or within a reasonable time thereafter was illegal, unlawful, and unreasonable;
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ii. A Declaration that the failure and/or refusal of the Cabinet and/or the Minister acting under the general authority of the Cabinet to advise the President to exercise the power to issue a Writ addressed to the Returning Officer of the electoral district of Debe South in the PDRC for the election of a new Councillor since February 22, 2021 or within a reasonable time thereafter was illegal, unlawful, and unreasonable;
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d. The Applicant no longer pursues the Orders for Mandamus.
The bye-elections were held on February 7, 2022, before all submissions were filed.
The following Grounds were relied upon by the Applicant:
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a. That the delay in calling the election amounted to a fundamental subvention of the Rule of Law enshrined in the Preamble of the Constitution that those exercising public power must do so lawfully by acting in accordance with the Constitution and any other relevant law. The Applicant contended that such delay amounted to a breach of Section 1 of the Constitution 1 and more importantly a critical concept of democracy, that the people must decide who should govern them.
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b. The delay was in breach of Section 29 of the Municipal Corporations Act ( MCA) 2 and Section 80 of the Constitution 3.
The conjoint effect of Section 29 of the MCA and Section 80(1) of the Constitution is that the Cabinet and/or the Minister acting under the general authority of Cabinet had a duty to inform the Office of the President that the seat of the Councillor for Debe South in the PDRC had become
The failure of the Cabinet and/or the Minister acting under the authority of Cabinet to notify and advise the President of the vacancy in the electoral district of Debe South in the PDRC for approximately nine (9) months as well as failure to advise the President to exercise the power to issue the Writ addressed to the Returning Officer of the electoral district of Debe South for the election of a new Councillor is justiciable under Section 15 of the Judicial Review Act ( JRA) 4 as the said failure is inordinate, unreasonable, unlawful and illegal. The fact that no timeframe is proscribed for the Respondents' compliance with the statutory duty under Section 29 of the MCA is no excuse since in such a circumstance the law requires a duty so imposed it must be carried out without unreasonable delay 5.
Pursuant to Section 7 of the JRA, the aforesaid failure and delay gives rise to matters of public interest which require the Court's intervention as:
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i. It is important that unlawful administrative decisions that impact directly upon the lives of citizens do not go uncorrected. The absence of an elected Councillor is important to every citizen of this country and in this instance, more particularly the constituents of the electoral district of Debe South in the PDRC which had been without representation for nine (9) months.
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ii. The proper interpretation of the powers that are given by the MCA is a matter of great and general public importance to the democracy of Trinidad and Tobago.
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iii. The supervisory jurisdiction and constitutional jurisdiction of the High Court that exists by way of Judicial Review is not rights based but more targeted at public wrongs and the misuse of public power, or the unlawful exercise of public power in a capricious, arbitrary and unlawful manner. In those circumstances the Applicant is most well suited to make this challenge.
The decision of the Respondents was challenged on the following grounds pursuant to Section 5(3) of the JRA:
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i. The continuing inaction is illegal, unauthorised and contrary to law;
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ii. It amounts to a failure to satisfy or observe the conditions and procedures required by law;
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iii. The failure to act amounts to the exercise of a power in a manner that is so unreasonable that no reasonable person could have so exercised that power;
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iv. The inaction amounts to an abuse of power;
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v. It is in conflict with the policy of the MCA, the JRA and the Interpretation Act;
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vi. It amounts to the breach of or omission to perform a duty.
The Chronology of Events/Facts on which the claim is based are:
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i. On December 2, 2019, Mr. Purushottam Singh was elected the Local Government Councillor for the electoral district of Debe South in the PDRC.
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ii. On February 14, 2021, Councillor Singh passed away.
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iii. On February 22, 2021, the Chairman of the PDRC declared the seat of the electoral district of Debe South vacant.
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iv. On April 6, 2021 the Minister notified the Cabinet of the vacancy created by the death of Mr. Singh.
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v. By Cabinet Minute No. 722 dated April 22, 2021, Cabinet noted that the PDRC, at its Statutory Meeting on February 22, 2021, declared the office of Councillor for the electoral district of Debe South in the PDRC vacant, consequent on the death of Councillor Purushottam Singh on February 14, 2021 and that in accordance with the provisions of the MCA, a bye-election for the said district was due.
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vi. By Memorandum dated May 27, 2021, the Minister informed the CEO, inter alia, that the matter was referred to Cabinet and that she would in due course be informed of the bye-election's date (See Appendix 4).”
On January 3, 2022, the Prime Minister advised the President that the bye-elections for Debe South will be held on February 7, 2022, and requested that the Writ of Elections be issued by the President in accordance with Section 29 of the MCA.
The bye-elections were held on February 7, 2022, in which the United Congress (UNC) Party retained the seat with the victory of Mr. Khemraj Sunil Seecharan.
Ms. Ramnarine testified that she was a Councillor in the PDRC where she served together with Purushottam Singh from 2019 until his death on February 14, 2021. The Chief Executive Officer (CEO) of the PDRC informed the Ministry of Rural Development and Local Government of his death by letter dated February 15, 2021, and advised therein that the Corporation would declare his seat vacant at a later date 6.
Ms. Ramnarine testified that on February 22, 2021, the Council declared Mr. Singh's seat vacant. This declaration was sent to the Ministry of Rural Development and Local Government and by Memorandum dated May 27, 2021, the Ministry indicated that the information had been passed to Cabinet and that in due course the CEO of the PDRC would be advised of the date for bye-election. This witness asserted that she could not respond to all the demands of her burgesses since Mr. Purushottam's vacant seat had not been filled.
The Applicant, an elector in the electoral district of Debe South testified that since Mr. Singh's passing his requests to the Corporation for assistance in cleaning drains and ravines have been unsuccessful because his Representative who had died had not been replaced. He indicated that some nine (9) months had passed since his Councillor's death without the announcement of a date for election for the vacant seat.
Mr. Rampersad testified further, that apart from a letter from the Minister acknowledging receipt of his pre action protocol letter dated October 14, 2021, no response was forthcoming from the Attorney General (AG) who had also been sent a copy of his pre action letter.
The Applicant testified that bye-elections were held in a timely manner in other districts where seats had been declared vacant in August to September 2020 and elections held by January 2021...
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