Roodal Panchoo v Attorney General of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr Justice Robin N. Mohammed |
| Judgment Date | 15 December 2022 |
| Neutral Citation | TT 2022 HC 284 |
| Docket Number | Claim No. H.C.A No. 2658/2003 |
| Court | High Court (Trinidad and Tobago) |
In the Matter of Sections 4 and 5 of the Constitution of the Republic of Trinidad and Tobago Act No. 4 of 1976
and
In the Matter of Sections 79 and 81 of the Children's Act Chapter 46:01
and
In the Matter of Section 5 of the Constitution of the Republic of Trinidad and Tobago Act 4 of 1976 Chapter 1:01
And in the Matter of the Detention of Roodal Panchoo from the 21st July 1986 to the Present Day by the Commissioner of Prisons His Officers Servants and or agents being Officers of the State of the Republic of Trinidad and Tobago
and
In the Matter of an Application by Roodal Panchoo a Citizen of the Republic of Trinidad and Tobago Alleging that Certain Provisions of the Said Constitution have been Contravened and are being Contravened in Relation to Him for Redress in Accordance with Section 14 of the Constitution.
the Honourable Mr Justice Robin N. Mohammed
Claim No. H.C.A No. 2658/2003
IN THE HIGH COURT OF JUSTICE
Mark Seepersad instructed by Vishala Seepersad for the Applicant
Tinuke Gibbons-Glen and Kelisha Bello instructed by Svetlana Dass and Nisa Simmons for the Respondent
On the 21 st July 1986, the Applicant was convicted of murder. At the time of the murder the Applicant was under the age of 18 years. On 21 July 1986, he was sentenced by the trial judge, Ibrahim J, under section 79 of the Children Act, to be detained at the State's pleasure. In 2003 while still detained, the Applicant brought constitutional proceedings challenging the sentence and execution.
On 2 nd February 2004, the constitutional motion was first heard before Dean-Armorer J (as she then was), and judgment was given on the 4 th August 2005. Dean-Armorer J held that the Applicant's rights under sections 4(a) and (b) and 5(2)(h) of the Constitution had been infringed, in so far as he had been deprived of the periodic review by the Court of the circumstances of the sentence. Accordingly, she ordered that the sentences passed by Ibrahim J on 21 July 1986 should be quashed, that the Applicant be detained during the Court's pleasure, that the term of his detention should be determined by the High Court and that damages, if any, be assessed by a judge of the High Court. The Attorney General appealed.
On 13 th January 2006, Yorke Soo-Hon J (as she then was) determined the Applicant should serve a minimum of 30 years to commence from the date of the conviction. In effect, the Applicant would have served the minimum period of 30 years on the 21 st July 2006. Following a review of the detention, the Applicant was released on 26 th July 2006.
Meanwhile, on the 14 th December 2009, the Court of Appeal dismissed the appeal of the judgment of Dean-Armorer J. However, the Court of Appeal held that there was no breach of the Applicant's constitutional rights. The Applicant successfully appealed the decision to the Privy Council and the Board found that the Applicant's rights were breached by failing to review the sentence and detention while he was in custody. Consequently, the order of Dean-Armorer J that damages to be assessed by a judge of the High Court was restored. 1
Consequently, on the 19 th January 2017, before Boodoosingh J (as he then was), the Applicant was awarded, by consent, damages for breaches of his constitutional rights in the sum of $100,000.00 inclusive of interest and costs.
The Applicant contends that even after numerous requests, the order of Boodoosingh J for damages has not been satisfied. The Applicant further contends that all available remedies, including applying for a Certificate of Order, have been exhausted.
As a consequence, the Applicant now seeks the enforcement of the order via constitutional proceedings. Accordingly, by Further Notice of Motion filed on 12 th October 2020, the Applicant seeks the following constitutional reliefs:
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a. That the Comptroller of Accounts do hereby take all steps necessary to pay to the Applicant all outstanding sums due and owing to the Applicant under the Order of Mr Justice Boodoosingh dated 19 th January 2017, together with all interest owing thereunder within 28 days of the date of this order;
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b. Alternatively to the above, that the Minister of Finance do hereby take all steps necessary to pay to the Applicant all outstanding sums due and owing to the Applicant under the Order of Mr. Justice Boodoosingh dated 19 th January 2017 together with all interest owing thereunder within 28 days of the date of this order;
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c. That the Respondent do pay the costs of this Motion certified fit for counsel;
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d. Such further or other relief as the Court sees fit.
On the 17 th March 2021, the Further Notice of Motion was heard, and the issue arose whether the procedure adopted by the Applicant to satisfy the order against the State was appropriate. Having agreed that there was no need for cross-examination, the parties were ordered to file brief closing submissions. Accordingly, the Applicant filed submissions on the 16 th April 2021 while the Respondent filed submissions on the 10 th May 2021.
In support of the further notice of motion, the Applicant filed an affidavit. The Applicant contends that on the 19 th January 2017, by consent, he was awarded damages in the sum of $100,000.00 in consequence of breaches of his Constitutional rights.
Pursuant to the said consent order, written requests for payment (5) were sent to the Attorney General. The Attorney General replied, noting that the matter has received urgent attention and that the needful will be completed for urgent payment.
No payments were made. Accordingly, by July 2018, the Applicant gave instructions for his attorneys-at-law to apply for a Certificate of Order under section 27(1) of the State Liability & Proceedings Act Chap. 8:02 (SLPA).
On the 25 th July 2019, Boodoosingh J (as he then was) ordered the Registrar to produce the Certificate of Order in pursuance of section 27(1). On October 1 st 2018, the order was lodged for approval with the Civil Court Office. A copy of the order submitted was exhibited to the Applicant's affidavit. To date, he has not received the perfected Order from the Registrar of the Supreme Court.
Subsequently, he instructed his attorney-at-law to write the Registrar, indicating that he intended to bring proceedings to challenge the failure or refusal of the Registrar to produce the order. The letter dated 12 th November 2018 was exhibited.
The Applicant stated that he could not bring judicial review proceedings for financial reasons and that he has no way of enforcing the payment of money. As a result, he said he did not receive the order for the Certificate of Order. Further, the Applicant said he was advised by counsel that even if he receives the order, there will still be a delay for payment by the Comptroller of Accounts.
Essentially, the Applicant submits that since constitutional proceedings are sui generis, the usual procedures for enforcement do not apply to the State. Counsel said that section 27 (3) of the SLPA is not a remedy available to the Applicant as it does not apply to constitutional proceedings. Counsel contended that it is an abuse of process to invoke section 27 of the SLPA as a means of enforcement in constitutional proceedings.
Further, counsel contends that there is no alternative remedy since obtaining the Certificate of Order followed by judicial review is cumbersome and circuitous. Also, there is no need to consider an alternative remedy when the Applicant brought constitutional proceedings.
As a result, the only remedy available to the Applicant is to proceed under section 14(2) of the Constitution of the Republic of Trinidad and Tobago (The Constitution) for further orders. Accordingly, counsel relied on Gairy and another v Attorney General of Grenada 2 and submitted that the facts could not be distinguished.
The Respondent submitted that the Applicant's evidence does not support the constitutional reliefs since the Applicant acknowledges that there exist alternative remedies which were shunned in favour of constitutional relief.
The Respondent scrutinised the purported Order of Justice Boodoosingh dated 25 th July 2018, which is unperfected.
The Respondent disagrees with the counsel for the Applicant's interpretation of Gairy v Attorney General of Grenada (supra) and states that the decision is distinguishable to the instant application. The Respondent compared the legislative provisions in Trinidad and Tobago and Grenada to support that contention. The Respondent concluded that the Applicant's submission that section 27 of the SLPA does not apply to constitutional proceedings is misconceived. Further, the Application should not be allowed to use a constitutional motion for enforcement since it circumvents the intention of Parliament.
Finally, the Respondent submitted that the Applicant has alternative remedies and that the further motion is an abuse of process. The Respondent cited Harrikissoon v Attorney General of Trinidad and Tobago 3; Jaroo v Attorney General of Trinidad and Tobago 4; Attorney General of Trinidad and Tobago v Ramanoop 5; and Gemma Bain-Thomas v The Attorney General of Grenada 6.
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[1] Whether on a proper construction of section 14 of the Constitution and section 27 of the SLPA, the procedure under section 27 applies to constitutional proceedings?
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[2] Were alternative remedies available to the Applicant?
Section 14 of the Constitution provides:
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14. (1)...
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