Ramadhar v The Attorney General
| Jurisdiction | Trinidad & Tobago |
| Judge | Edoo, J |
| Judgment Date | 13 June 1980 |
| Neutral Citation | TT 1980 HC 50 |
| Docket Number | No. 1599 of 1979 |
| Court | High Court (Trinidad and Tobago) |
| Date | 13 June 1980 |
High Court
Edoo, J.
No. 1599 of 1979
Mr. E. Roopnarine for the applicant.
Mr. Beckles, Deputy Solicitor General and Mr. Yearwood, State Counsel for the respondent.
Constitutional Law - Fundamental rights and freedoms — Right to a fair hearing and right to equality of treatment — Court found that applicant's rights under the Constitution had been breached when his driver's permit was suspended without a hearing.
The facts of the instant matter are not in dispute.
According to the affidavit of the applicant sworn to on the 25 th day of February, 1980 and filed herein, the applicant was on the 1 st day of March, 1977, driving motor lorry TM-9675 along the Princess Margaret Highway, Caroni, when a collision occurred between the said motor lorry and a police motorcyclist. The applicant was subsequently charged with the offences of dangerous driving, driving without due care and attention and driving an unlicensed vehicle. By a Notice No. 1240 — dated the 28 th day of June, 1977, issued by the Licensing Authority, the applicant's driving permit, No. 64026 was suspended pending the determination of the charges against him. This the Licensing Authority purported to do under Section 61(l) of the Motor Vehicles and Road Traffic Ordinance, Ch. 16, No. 2 (hereinafter referred to as “the Ordinance”) which reads as follows:
“61(1) If and when any person is charged with manslaughter arising out of the use of any motor vehicle or with contravening the provisions of Section 4.5 or Section 46, it shall be lawful for the Licensing Authority to order the suspension of the driving permit of the person so charged pending the determination of the charge.”
Section 45 relates to the driving of a motor vehicle under the influence of drink or a drug while Section 46 relates to reckless driving. It seems to me that in any event the Licensing Authority could not suspend the applicant's driving permit for driving without due care and attention or with driving an unlicensed vehicle.
The said notice also required the applicant to produce the said permit forthwith on demand by any police constable and surrender same to him in accordance with sub-section (2) of section 61 of the Ordinance.
The affidavit of the applicant further goes on to state that he was, arrested and charged with certain offences on the 16 th October, 1977 as a result of driving the staid motor vehicle while his permit was suspended. These allegations are not relevant to the issues now before the court.
The affidavit in reply, sworn by Thomas Payne, Assistant Transport Commissioner, on the 30 th April 1980, does not dispute the facts stated in the applicant's affidavit but paragraph 3 of the said affidavit mentions the fact that a report was received from the Commissioner of Police (a copy of which is exhibited as ‘T.P.1’) in which a report of the accident is set out and it recommended that the said permit be temporarily suspended. The affidavit then goes on to state as follows:
“5. As a consequence the Transport Commissioner after studying the report, issued a temporary notice of suspension of driving permit No. 64026, numbered 1240 and dated 28th June, 1977 which was forwarded to the police for service on the applicant.
6. …
7. The said temporary suspension notice served on the applicant, was the ninth such notice, issued for the soar 1977, during which year twelve such notices were issued. A copy of the said notices are annexed and marked as “T.P.3”.
8. All temporary suspension notices are issued on the recommendation of the police, but the Transport Commissioner deals with each case on its own merits, and notice is not automatically issued because the police recommended such a course.
9. No hearing is ever conducted in the matter of a temporary suspension by the Licensing Authority.”
The applicant seeks declarations under sections 4(b) and/or 4 (d) of the Constitution that the: notice purporting to suspend the said permit is null and void and is contrary to section 5(2)(e) not to deprive a person of the right to a fair hearing in accordance with the principles of natural justice; that the said notice infringes the applicant's fundamental rights not to be deprived of the enjoyment of property except by due process of law under sections 4(a) and/or 4(b) and/or 4(d) of the Constitutions that the said notice is an act on the part of the State likely to contravene his rights and freedoms guarantee under sections 5(2)(c) and/or 4(b) and/or 4(d). The applicant also seeks an order for damages and for his costs.
The relevant paragraphs of section 4 of the Constitution upon which the applicant relies are as follows:
“4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely:
(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law;
(c) …
(d) the right of the individual to equality of treatment from any public authority in the exorcise of any functions;…”
Section 5(2)(e) stipulates that Parliament may not “deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice far the determination of his rights and obligations.”
Counsel for the applicant daps not dispute the fact that the Licensing Authority was empowered under Section 61 of the Ordinance to suspend the applicant's driving permit. What he contests is the manner of suspension, i.e. without giving the applicant the opportunity to be heard before doing so. This, he says, is not in accordance with ‘due process of law’ as enshrined in the Constitution.
The ‘due process’ clause in the Constitution was explained by Lord Diplock in the Privy Council Appeal of Stanley Abbott v. The Attorney General of Trinidad and Tobago, P.C.A. 37 of 1978, where he said:
“… ‘due process of law’ means procedures for the determination of an individual's rights and obligations ‘vis a vis’ the State and other public authorities, which conform to the standards of administration of, justice in Trinidad and Tobago prior to 1 st August, 1976 and are described in greater detail though not necessarily exhaustively in section 5(2).”
These views wore also expressed in Maharaj v. The Attorney General of Trinidad and Tobago [1978] 2 W.L.R. 902 and De Freitas v. Benny [1976] A.C. 239; both appeals to the Privy Council, and also sometime previously by Phillips J.A. in the Court of Appeal in Razie v. The Attorney General (1971) 18 W.I.R. 113.
Counsel for the applicant contends that the failure by the Licensing Authority to give the applicant an opportunity to be heard before suspending the said permit infringed his rights under section 5(2), more particularly under paragraph (e) (supra).
The concept of natural justice generally requires that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed so that they may be in a position to make representations on their behalf, or to appear at a hearing or enquiry (if one is to be held); and effectively to prepare their own case and to answer the case (if any) they have to meet. See Huggard v. Worsbrough U.D.C. [1962] 2 Q.B. 93. This requirement of adequate notice and opportunity to be heard is succinctly expressed in the maxim ‘audi alteram partem’. S.A. de Smith's Judicial Review of Administrative Action, 3rd Edn. at pp. 134 to 214 gives a comprehensive survey of the circumstances and cites numerous instances when this right has been applied by the law. I expressed the self-same views in my decision on the 8 th May, 1980 in the Application of Aleem Mohammed, No. 79 of 1980 (Sub-Registry San Fernando).
The case of Hutchinson v. Commissioner of Police; 16 W.I.R, p. 96, an appeal to the Barbados Court of Appeal, cited by counsel for the applicant, in my opinion, was decided in accordance with the ‘audi alteram partem’ rule. There the appellant appeared before a magistrate with driving his motorcar while under the influence of drink. He pleaded not guilty and trial of the matter was adjourned to a later dater. The magistrate then suspended the appellant's driving licence pending the determination of the charge. In allowing the appeal, Hanschell, J. said:
“In our view to deprive a man of his driving licence can be a serious matter and such a course should not be lightly or casually undertaken. When the circumstances of a particular case show that such a step should be taken, it is of course proper to adopt such a course. But the person charged must be given a chance to put forward his view of the situation and resist making of the order.”
It is to be noted that this case was decided in respect of action on by a judicial authority.
Counsel has further contended that there was a likelihood of bias in the Licensing Authority's decision to suspend the applicant's permit and he has referred to paragraphs 4 and 5 of Payne's affidavit (supra). Paragraph 4 states as follows:
“4. The applicant herein had been charged inter alia by the police with dangerous driving contrary to section 46(1) of the Motor Vehicles and Road Traffic Ordinance Ch. 16, No. 3 and they...
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