Samuel Friday v The Attorney General of Trinidad and Tobago

JurisdictionTrinidad & Tobago
Judgment Date21 June 2022
Neutral CitationTT 2022 HC 143
Docket NumberClaim No: CV 2021-02843
CourtHigh Court (Trinidad and Tobago)
Between
Samuel Friday
Claimant/Applicant
The Attorney General Of Trinidad And Tobago
Defendant/Respondent
Before

the Honourable Mr. Justice R. Rahim

Claim No: CV 2021-02843

REPUBLIC OF TRINIDAD AND TOBAGO

Appearances:

Claimant: Mr. P. Ramadhar instructed by Mr. T. Roopnarine

Defendant: Ms. M. Smith instructed by Ms. S. Ramhit

1

This is a claim by constitutional relief arising out of what the Claimant alleged to be the failure, refusal or omission of the State to pay to him his lawfully due pension and gratuity (hereinafter referred to as “benefits”) upon retirement within a reasonable time. The first case management conference was heard by this court on October 4, 2021 and adjourned to October 5, 2021. On the latter date, the Defendant indicated that the benefits had since been paid into the bank account of the Claimant some two (2) years after it was due according to the Claimant. The issue of the payment has therefore been resolved but the claim is continued on the basis of alleged breach of the constitutional rights. The issue of damages therefore, also remains alive and so too is interest.

2

The Claimant alleges that the failure to pay the Claimant violated his right to the enjoyment of property and the right not to be deprived thereof except by due process of law under section 4(a) of the Constitution. Further, the failure of the State to comply with regulations 183(1), 183(2) and 184(1) of the Police Service Regulations (“the Regulations”) denied the Claimant his constitutional right to protection of the law enshrined in section 4(b) of the Constitution.

3

Finally, the Claimant asserts in broad measure that his rights under sections 4 and 5 were contravened.

The Facts
4

The Claimant joined the Trinidad and Tobago Police Service (TTPS) on May 28, 1984. He retired on December 4, 2019 having sustained an injury while on duty over eight (8) years before retirement. By October 2020 the Claimant was not yet in receipt of his benefits which according to him resulted in inability to service his debts. It is uncontested that he was served with a pre-action letter of demand from the bank in relation to outstanding mortgage payments on October 29, 2020.

5

Not having received his benefits by February 8, 2021, he made a Freedom of Information request to the Commissioner of Police pursuant to the Freedom of Information Act Chapter 22:02 ( FOIA). The information requested was that of a date for payment. The request was acknowledged by the Administrative Secretary of the Office of the Commissioner. On February 22, 2021 a reminder was sent to the Commissioner in relation to the FOIA request. The court notes that the period for reply 2 to this request is set in law as thirty (30) days and that the period had not yet expired at the date of the reminder.

6

On March 29, 2021 the Claimant received a letter from the Legal Unit of the TTPS which indicated that the payment of his benefits was engaging the attention of the internal auditors and that he would receive a response by April 28, 2021. The letter also set out that payment was dependent on the availability of financial resources. By April 28, 2021 no letter was forthcoming from the TTPS as promised. About one month thereafter on May 20, 2021 the TTPS wrote to the Claimant saying that there had been no response because of the challenges faced because of the COVID 19 Pandemic and it requested until June 21, 2021 so to do.

7

In the meantime, on June 16, 2021, the bank wrote once again to the Claimant threatening legal proceedings if the mortgage was not serviced.

8

By June 25, 2021 nothing was heard from the TTPS despite its promise and so July 6, 2021 a pre-action letter was dispatched to the Defendant by Attorney at law for the Claimant. The day after, namely, on July 7, 2021 the TTPS requested a further extension to August 6, 2021 to provide a response to the FOIA request made some six (6) months earlier.

9

Prior to August 6, 2021, on July 13, 2021, the TTPS wrote to the Claimant indicating that his file had been submitted to the Auditor General's department for approval on May 26, 2021 and that approval had not yet been provided by that department to its Pensions Branch.

10

Once again, pressure from the bank mounted as another letter dated July 20, 2021 was sent by the bank to the Claimant setting out the outstanding sum owing as that of one hundred and seventy-four thousand, two hundred and thirteen dollars and forty-five cents ($174,213.45) with accruing daily interest of twenty-nine dollars and ninety-seven cents ($29.97) and legal fees of five thousand, five hundred and forty-seven dollars and seventy-five cents ($5,547.75). On August 16, 2021 another enquiry was made of the Attorneys for the Claimant by the bank in relation to sums outstanding.

11

Up to that date nothing further had been forthcoming from the TTPS some almost three (3) months since the submission of the file to the Auditor General. As a consequence the Claim was filed on August 27, 2021.

12

After the filing of the Claim, a cheque for the sum of one hundred and seventy-eight thousand, five hundred and eighty-five dollars and eighty-four cents ($178,585.84) dated September 30, 2021 was prepared for collection by the Claimant and a further sum of one hundred and twenty-eight thousand, one hundred and six dollars and five cents ($128,106.05) was deposited by the Accounts department into the Claimant's account on October 5, 2021.

The Law
13

Part XV of the Police Service Regulations sets out at Regulation 183 as follows:

  • (1) The computation and authorisation of gratuities and pensions of officers whose retirement from the Service is known to be impending shall be treated as urgent matters of high priority.

  • (2) The Commissioner shall ensure that particulars of service and pay of all officers whose retirement is known to be imminent are furnished accurately to the Comptroller of Accounts not less than three months before the date on which the officers concerned are due to retire, in order to enable the computation and checking of pensions, retiring allowances and gratuities to be completed by the Comptroller of Accounts and the Auditor General and submitted for authorisation before the date on which the officer's retirement from the Service is due to take effect.

    Regulation 184(1) reads:

  • (1) As a contribution towards the special superannuation allowances provided to officers, there shall be deducted from the pay of every officer a sum at such yearly rate as the President from time to time directs, not being a greater rate than one and a quarter per cent; and all such sums shall be paid to the Comptroller of Accounts on or before the eighth day of every month.

14

It is uncontested that the Claimant would have made his contributions every month pursuant to Regulation 184(1). The Claimant submits that the money to which he was entitled was property within the meaning of section 4(a), a submission that is also not contested. In the court's view, the main issues are as follows:

  • a. Did the TTPS fail to pay to the Claimant his benefits within a reasonable time. If so, did that failure constitute a breach of the section 4(a) and/or 4(b) rights that entitles him to an award of damages.

  • b. Whether as a consequence of the delay in payment, the Claimant is entitled to interest.

15

Standing Order 43 of the Standing Orders of the TTPS sets out the process to be followed by a retiring officer. Sub 37 of that Order provides:

  • (1) A Police Officer whose retirement is imminent or wishes to retire voluntarily shall apply on writing to the Commissioner of Police at least six months before the date of retirement with a view to having his benefits computed.

Discussion
16

The Defence argues that the delay in this case has not been unreasonable in all of the circumstances and therefore, the failure to pay for some two (2) years was not unconstitutional. The starting point must of course be the reasons provided by the Defence for the delay.

17

Lucien Ferguson is an Assistant Superintendent of Police attached to the Police Administration building and assigned to the Human Resource Branch of the TTPS. He was also assigned to the Legal Unit previously. He is one of the custodians of the personnel files of the officers of the TTPS. In treating with the issue of delay this deponent set out the process for the application under Standing Order 43. In summary, the officer is required to attach an original Birth Certificate and an Option Form to his application. The officer must elect in that Option Form whether to receive a reduced pension and gratuity on retirement. The witness did not condescend to particulars but it is a matter of logic that the Option Form is relevant to the officer who retires voluntarily before the age of 5 retirement so that he is afforded the opportunity to immediately receive a reduced pension due to the fact that he has not yet reached the age of retirement. The Option Form would therefore, have not been relevant to the Claimant as he was retiring at the age of retirement.

18

The application is submitted through the head of the Division/Section/Branch to which the officer is attached and runs the gamut until it reaches the Senior Superintendent, Human Resource Branch together with the retiring officer's Divisional Personnel file and Inset Sheet bearing an up to date entry and record of sick leave and vacation leave. The Senior Superintendent then forwards the information and application to the Commissioner for his approval. After the approval is granted the application is processed and the intended retirement and leave entitlement are published in a Departmental Order.

19

Then there is more. The Permanent Secretary in the Ministry of National Security, the Comptroller of Accounts and the Director of Human Resource are then informed of the officer's intention to retire by memorandum. The Senior...

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