Seesahai v The Defence Council
| Jurisdiction | Trinidad & Tobago |
| Judge | FRANK SEEPERSAD |
| Judgment Date | 27 June 2017 |
| Neutral Citation | TT 2017 HC 128 |
| Docket Number | CLAIM NO. CV2016-01690 |
| Court | High Court (Trinidad and Tobago) |
| Date | 27 June 2017 |
IN THE HIGH COURT OF JUSTICE
The Honourable Mr. Justice Frank Seepersad
CLAIM NO. CV2016-01690
In the Matter of an Application by Andrew Seesahai for Judicial Review Under the Judicial Review Act Chapter 7:08
and
In the Matter of the Failure of the Defence Council (Established Under Section 7 of the Defence Act Chapter 14:01) to Comply with The Provision Sections 194 of the Defence Act Chapter 14:01
1. Mr. Gerald Ramdeen instructed by Ms. Dayadai Harripaul for the Claimant
2. Ms. Hinds instructed by Ms. Mark for the Defendant
Interpretation Act, Chap. 3:01
Defence Act, Chap. 14:01
Judicial Review Act, 2000
Constitution of Trinidad and Tobago
Civil Practice and Procedure - Claim — Fixed date claim form — Petition — Delay — Material non-disclosure — Whether claimant committed material non-disclosure so as to warrant refusal of reliefs sought — Whether any practical purpose would be achieved if reliefs granted — Whether unreasonable delay by defendant in making a determination on petition of claimant — Whether claimant entitled to relief sought.
Constitutional Law - Fundamental Rights and Freedoms — Whether delay by defendant in making determination on petition amounted to breach of right of claimant to protection of the law rendering failure to make decision unlawful.
Before the court for its determination was the Claimant's Fixed Date Claim Form by virtue of which the following reliefs were sought:
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(i) A declaration that the Claimant is entitled to a decision due to him in accordance with s. 194 of the Defence Act Chapter 14:01 with respect to his complaint/petition dated August 28, 2014.
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(ii) A declaration that there had been unreasonable delay on the part of the Defendant in making a decision on the Claimant's complaint/petition dated August 28, 2014.
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(iii) A declaration that the failure of the Defendant, which failure is continuing, to make a decision with respect to the Claimant's complaint/petition dated August 28, 2014 is unreasonable, unlawful and illegal.
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(iv) An order of mandamus to compel the Defendant to make a decision with respect to the Claimant's complaint/petition for redress of grievance within 7 days from the date hereof pursuant to s. 194 of the Defence Act.
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(v) A declaration that the failure of the Defence Council to make a decision pursuant to s. 194(2) of the Defence Act on the complaint of the Claimant is in breach of the Claimant's right to the protection of the law guaranteed under s. 4(b) of the Constitution.
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(vi) That the Defendant do pay to the Claimant costs of and associated with the making of this application to be assessed in default of agreement.
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(vii) Such further orders, directions or writs as the court considers just and as the circumstanced of the case warrant pursuant to s. 8(1)(d) of the Judicial Review Act 2000.
An affidavit was filed by the Claimant in support of the Fixed Date Claim Form and the Defendant filed two affidavits.
The issues to which the court addressed its mind are as follows:
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(i) Whether the Claimant is guilty of material non-disclosure so as to warrant a refusal of the reliefs sought,
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(ii) Whether no practical purpose would be achieved if the reliefs sought are granted,
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(iii) Whether there has been unreasonable delay by the Defendant in making a determination on the Claimant's petition,
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(iv) Whether the delay on the part of the Defendant in making a determination on the Claimant's petition amounts to a breach of the Claimant's constitutional right to the protection of the law rendering the failure to make a decision unlawful,
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(v) Whether the Claimant is entitled to the relief sought in the Fixed Date Claim filed on June 6, 2016.
On the issue of non-disclosure, the Defendant, in its submissions, pointed to the fact that the Claimant failed to inform the court that he did proceed on resettlement training since October 2014. It is not in dispute that this information was not placed before the court by the Claimant and the Defendant only did so late in time. The critical issue, for determination is whether this fact was a material fact which the Claimant had an obligation to disclose.
The issue of whether or not information is material has to be determined by the court and in doing so the court must refer to the issues that are before it.
When one considers the relief sought by the Claimant, no issue is taken with the Claimant's resettlement but the thrust of the Claimant's complaint is focused upon the Defendant's alleged delay in discharging the statutory obligation under s. 194 of the Defence Act (hereinafter referred to as “the Act”) and a determination as to whether the evidence has established that there has been unreasonable delay by the Defendant in the making of a decision relative to the Claimant's petition.
The Claimant's petition was annexed as “AS3” to his affidavit filed on May 18, 2016 and essentially contained complaints in relation to the conduct of Major Mc CLean. There is no correlation between the issue of resettlement training and the gist of the Claimant's complaint.
Accordingly, the failure of the Claimant to disclose the fact that he had proceeded on resettlement training did not materially impact upon the subject of his complaint, which is the alleged misconduct of Major Mc Clean and the non-disclosure is irrelevant to the issue as to whether or not there has been unreasonable delay to make a decision under s. 194 of the Act. The issue of resettlement training was collateral to the issues raised in the Claimant's petition, the substantive issue being the alleged misconduct of Major Mc Clean and so the Claimant's failure to disclose same is not detrimental to the instant claim.
Once the process under s. 194 of the Act has been invoked, there exists a statutory obligation to render a decision. The Defence Council, by virtue of s.7 of the Act, is comprised of the Minister of National Security, two cabinet ministers appointed by the Prime Minister, the Chief of the Defence Staff, and the Permanent Secretary of the Ministry of National Security.
Until the Council renders a decision, the complaints of complainants are extant and in that context it cannot be said that an action that calls into question the issue of delay under s. 194 of the Act is without merit.
The armed forces and the conduct of all of its members should always be able to withstand public scrutiny and the highest...
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