Seepersad v The Attorney General of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Lucky, J. |
| Judgment Date | 27 February 1998 |
| Neutral Citation | TT 1998 HC 17 |
| Docket Number | No. S-1562 of 1993 |
| Court | High Court (Trinidad and Tobago) |
| Date | 27 February 1998 |
High Court
Lucky, J.
No. S-1562 of 1993
Mrs. L Maharaj instructed by Mrs. J. Samlalsingh for the Applicant
Mr. Busby instructed by Miss Benjamin or the Respondent
Constitutional law - Fundamental rights and freedoms — Right to enjoyment of property and not to be deprived thereof — Appellant claimed that the seizure of his vehicle was unconstitutional — Court found that there was no evidence to show that the applicant committed a serious offence, that he cut the chassis; that he was involved in any criminal activity or a suspect in any criminal activity or was a suspect in such activity — Ghany v. Jones [1975] 1 Q.B. 693 applied — Declarations granted.
The Motion
This is a motion by originating summons in which the applicant is seeking redress for infringements to his constitutional rights as set out in section 4(a) and 4(b) of the Constitution. Specifically, the right of the individual to enjoyment of property and right not to be deprived thereof except by due process of law; the right to protection of the law; and, protection of his rights and freedoms as prescribed in section 5 of the constitution.
The facts are not really in dispute. The evidence, on affidavit, discloses that the applicant became the owner of the vehicle TAK 5462, the subject matter of this action, in July 1993. On or about 26 th August 1993 the applicant went to the licensing office, as he had done in July 1993, to transfer the vehicle to one Ramdeo Ramtahal, the purchaser. In accordance with the certified procedure, the vehicle had to be inspected before transfer. Licensing Officer Badree who inspected the vehicle told him it appeared “too new” for the series and he suspected it may have been stolen. That very day the applicant brought the mechanic who repaired the vehicle prior to the sale and the bills for new parts he had purchased. Nevertheless, he was told to hand over the keys which he did. On 30 th August he returned to the licensing department and was informed by Mr. Mc Donald, the Acting Deputy transport Commissioner, that the chassis number was tampered with, as a result the vehicle was seized. He returned on 1 st September 1993 and was informed by Mr. Mc Donald that his vehicle was at the Criminal Investigation Department, San Fernando. On 29 th September 1993, by attorney's letter, he requested the immediate release of his vehicle which he used and needed to sell market produce. The vehicle was not returned. On 2 nd December 1993 the applicant filed this motion.
On 31 st March 1994, some seven and a half months after the vehicle was seized, it was returned to the applicant in a state of disrepair. The applicant spent some $7,000 to carry out repairs to the vehicle.
In support of the motion the applicant filed two affidavits:
The first was sworn on 30 th November 1993 and filed on 3 rd December 1993; the second was sworn and filed on 10 th October 1994; the third on 14 th November 1994 and a fourth by one Ramdeo Ramnath, a straightener/painter/Mechanic, who examined the vehicle at the police station before it was released and after its release carried out the repairs.
The respondent filed two affidavits:
(1) That of police constable Michael Pierre of the Criminal Investigation Department, dated and filed 8 th February 1995, in which he deposes that he was detailed to make enquiries with respect to the vehicle in quo which was a “suspected vehicle”. His investigation required an examination and report from the Forensic Science Centre where there was a heavy backlog of vehicles to be examined. He did his best to expedite but did not receive a report until 24 th March 1994. As a result of the report the applicant was advised that he could collect the vehicle.
(Apparently the Forensic Science Centre report showed that the vehicle was not stolen and the chassis was not tampered with).
(2) That of Winston Mc Donald who deposed that the vehicle was inspected by two officers who felt the vehicle should have been in the ‘TAY’ series not the much earlier series of ‘TAK’, and the chassis number appeared to be neatly cut and replaced. He requested the keys and in view of the prevalence of larceny of motor vehicles kept it for further investigations.
(3) A supplemental affidavit of Michael Pierre who deposed that the vehicle was not in a dilapidated condition when he collected it, and prior to that at the Forensic Science Centre or as set out in the applicant's affidavit.
Mrs. Maharaj; attorney for the applicant, submits that the state has no power to detain a person for questioning (see Nixon Gumbs v. Attorney General). Similarly, the state has no power to seize and detain a person's property for purposes of investigation.
Section 12 of the Judicature Act Ch. 4:01 provides that the Common Law in farce in England shall be deemed to have been in force in Trinidad and Tobago since 1 st April 1848 and 1 st January, 1989 respectively. Counsel submits that 1 st April 1848 is the effective “cut off” date whereby the common law of England ceased to apply to Trinidad; thereafter our common law developed side by side instead of with the common law of England. In 1848 the English common law did not provide for the detention of a citizen's property when no charges or arrests had been made.
Counsel asked the court to note that the applicant was not arrested or charged for any offence; neither was the vehicle material evidence in any pending court matter.
Referring to the dicta in Ghani v. Jones [1970] 1 Q.B. 693, counsel contends that this decision may not necessarily be strictly applicable. Courts in Trinidad and Tobago have to see whether there is any, legislation to enhance what was decided in Ghani v. Jones. Legislation was passed in the United Kingdom in 1984 to implement and extend the principles in Ghani v. Jones, see The Law Relating to Entry Search and Seizure — David Feldman p. 225 10.02. 10:03 and see Lodwick v Sanders [1985] 1 All E.R. 577. The absolute power of secure does not apply at common law if the person in possession of the item is not implicated in an offence. See Wershof v. Commissioner of Police for the Metropolis [1978] 3 All E.R. p. 540.
In Maharaj v. The Attorney General No. 2 [1978] at pp 671 and 677 the state has the onus of showing that it had clear legal authority to do what it did. There is no clear legal authority to seize and detain the applicant's vehicle.
In “Civil Actions against the Police” by Richard Clayton and Hugh Tomlinsin, the authors consider the development of statute and common law in the United Kingdom. Chapter 7 Lawful Justifications for Entry, Search and Seizure is helpful. The authors examine the common law statutory authorities which allow the police to enter premises and seize goods. The judgment of Denning M.R in Ghani v. Jones sets out guideline with respect to search and seizure by police officers. Counsel asked the court to note that licensing officers have the same powers as police officers.
The authors state at p. 212 that “the common law, therefore, only allows seizure of a narrow range of items from people who are reasonably suspected of committing or being implicated in ‘serious crime’.”.
Learned counsel submits that in the United Kingdom unlike Trinidad and Tobago, the common law principles as set out in Ghani v Jones have now been superseded but not abolished, by the provisions of The Police and Criminal Evidence Act [1984] U.K. (We do not have a similar act in Trinidad and Tobago).
Counsel contends that the applicant in these circumstances could not have been reasonably suspected of having committed a serious crime, because no crime of larceny of a motor vehicle had been reported; and, on the very day of the seizure the applicant demonstrated his willingness to show why the vehicle appeared (new”, but was not permitted to do so. The vehicle was retained and kept for seven and a half months. Learned counsel submits that this is unreasonable. The vehicle was not retained for use in court proceedings; it was kept longer than was reasonably necessary to complete investigations; and applying the principles of common law as set out and developed with Ghani v Jones as the watershed, the seizure and detention is wrong.
There is nothing in the evidence to show that the applicant committed a serious offence; that he cut the chassis; that he was involved in any criminal activity or a suspect, in such activity.
Learned counsel submitted that the statutes do not authorizes the seizure and retention. Counsel referred to the Police Service Act sections 4, 35 and 36(1)(d); The Larceny Act Ch 11:12 section 38.
It follows that the applicant has been deprived of the protection of the law, because, under the provisions of The Police Service Act and The Larceny Act, specifically section 36(1)(d) [unlawful possession] there is a duty on an officer (police or licensing) to bring a suspected person before a magistrate as soon as possible. Counsel submits that they could have acted under the section but did not. (The powers and privileges of a licensing officer are the same as that of a police officer — section S Ch 48:50).
Turning to case law, counsel traced the development of the common law on this issue of seizure and detention of property. Reference was made to Ghani v. Jones, cit op. Learned counsel suggests that there were other processes available to the state — see Batosos v. City of Laval 5 D.K/L.R. 4th p. 180 at p. 183 where the comments of Chief Justice Hughes of the New Brunswick Court of Appeal in R v Corrier [1972], is stated:–
“It is recognised by our courts that peace officers should not be unduly hampered in their difficult task of investigating crime and procuring evidence for use in criminal cases...
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