Smith et Al v L.J. Williams Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Hassanali, J.A.,Kelsick, J.A.,Cross,,Cross, J.A. |
| Judgment Date | 28 May 1982 |
| Neutral Citation | TT 1982 CA 21 |
| Docket Number | Civil Appeal No. 19 of 1980 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 28 May 1982 |
Court of Appeal
Kelsick, Hassanali and Cross, JJ.A.
Civil Appeal No. 19 of 1980
A. Lester Q.C., Mrs. J. Permanand, S.C. and Marc Thorne for the appellants
M. de la Bastide Q.C. and Mrs. D. Moore-Miggins for the respondent
Constitutional Law - Fundamental rights and freedoms — Equality of treatment before the law
By notice of motion of 20th January, 1978 as amended the respondent sought inter alia:
“(1) A declaration that [the appellant] Smith, the Chief Immigration Officer of Trinidad and Tobago (hereinafter referred to as the Chief Immigration Officer() by consistently and repeatedly treating the applications made by the Applicant in the course of its business on behalf of persons of foreign nationality for permission to enter and/or remain in Trinidad and Tobago less favourably than the same or similar applications made by other persons contravened and infringed the right of the applicant guaranteed until the 31st July, 1976 under Section 1 of the Trinidad and Tobago Constitution 1962 and thereafter under Section 4 of the Constitution of the Republic of Trinidad and Tobago to equality of treatment from any public authority in the exercise of any functions and to equality before the law and the protection of the law; and
(1A) An order that damages in respect of the damage and loss suffered by the Applicant as a result of the aforesaid contraventions and infringements of the Applicant's constitutional rights be assessed and paid to the applicant.”
On 24th January, 1980 a judge of the High Court found that on the facts of the case the Chief Immigration Officer had contravened sections 1(b) and 1(d) and 4(b) and 4(d) in relation to the respondent and he granted a declaration in the terms sought and ordered that damages occasioned to the respondent be assessed by a judge in chambers.
From that judgment the appellants appealed on several grounds of law. They accepted without question the learned judge's findings of fact. With becoming candour counsel assured this court that the state deprecated the situation found by the learned judge and that it would not condone any discriminatory practices, however the state's contention was that in his analysis of the law the judge fell into a number of errors regarding his jurisdiction to entertain the respondent's application and that he was wrong in holding that there was a contravention of the provisions of the said sections and in granting the declaration and the order sought by the respondent.
The facts of the case and relevant provisions of the immigration law are indicated in the judgment of Kelsick and Cross JJ.A. I shall not repeat except to comment that the learned judge found that:
- The offending acts were not mere errors of judgment and were not due to inadvertence on the part of the Chief Immigration Officer; 2. They were done with his awareness of the probable consequences to the respondent; and 3. They were done in bad faith and were calculated to hurt the respondent.
Some of the acts were done while the 1962 Constitution was in force and others after the Republican Constitution came into effect.
The main provisions of the Constitutions involved are: section 1(b) and 1(d), 2 and 6 of the 1962 Constitution (hereinafter called section 1(b), 1(d), 2 and 6 respectively) and sections 4(b) and 4(d), 5 and 14 of the Republican Constitution, 1976 (hereinafter respectively called Sections 4(b), 4(d) 5 and 14) which are analogues of sections 1(b), 1(d), 2 and, 6 respectively of the former Constitution. A reference hereafter to anyone of the sections of the one Constitution includes where appropriate a reference to its analogue in the other.
Sections 1 and 2 are reproduced in the judgment of Cross J.A.
Section 3 reads:
(1) Sections 1 and 2 of this Constitution shall not apply in relation to any law that is in force in Trinidad and Tobago at the commencement of this constitution.
Section 6 reads:
6. (1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of the foregoing sections or section 7 of this Constitution has been, is being or is likely to be contravened in relation to the same matter which is lawfully available, that person may apply to the High Court for redress.
(2) The High Court shall have original jurisdiction-
(a) to hear and determine any application made by any person in pursuance of subsection (1) of this section; and
(b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (3) thereof;
and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of, any of the provisions of the said foregoing sections or section 7 of the protection of which the person concerned is entitled.
Section 5 is some respects differently worded from section 2, but the difference is not material for the purpose of the determination of the issues arising on this appeal.
By section 105(7) of the 1962 Constitution, section 19 of the Interpretation Act 1889, of the United Kingdom (hereinafter referred to as “section 19” of the United Kingdom Act) applies for the purpose of interpreting the 1962 Constitution. That section reads:m” The expression “person” shall unless the contrary intention appears include any body of persons corporate or incorporate.”
Sections 34 and 50 (n) of the Interpretation Act, 1962 are applicable to the Republican Constitution.
Section 34 of that Act reads:
34. (1) Words in an enactment importing, whether in relation to an offence or not, persons or male persons include male and female persons, corporations, whether aggregate or sole and unincorporated bodies of persons.
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(2) In an enactment,
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(a) words in the singular include the plural, and
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(b) words in the plural include the singular.
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(3) Without prejudice to subsection (1) and (2), a reference in an enactment to a party aggrieved includes a reference to a body corporate in every case where that body is a party aggrieved.
Section 50 thereof reads, so far as is material to this judgment:
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(b) …
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(l) “functions” include jurisdictions, powers and duties;
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(n) “individual” means a natural person axed does not include a corporation.
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It was not in dispute that at all material times the Chief Immigration Officer was a public authority within the meaning of section 1(d).
As already noted the learned judge found that the facts disclosed a contravention of section 1(b) and section 1(d) in relation to the respondent. I shall address myself firstly to the finding that there was a contravention of section 1(d).
I turn now to the submissions which were made on behalf of the appellants. Though I may appear to, I do not claim to be dealing with the several submissions in the order in which they were made.
It was submitted that the respondent being a corporation, that is, an artificial person, and not a natural person, lacked legal standing to bring the instant motion. I do not think it was disputed that at the commencement of the 1962 Constitution artificial persons had been enjoying rights and freedoms in Trinidad axed Tobago. It was said however that section 1 refers to those only which had been enjoyed by “the individual” i.e. the natural person, and therefore the artificial person cannot invoke section to allege a contravention of any one of those rights and freedoms. Admittedly there is no applicable statutory definition of the word “individual”.
Since this case is substantially concerned with interpretation of the Constitution of Trinidad and Tobago it is I think desirable that I set out briefly what I consider are well established principles and guidelines applicable in the interpretation of a written constitution:
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(a) A liberal approach to the construction of the word is preferred to the restrictive literalist approach;
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(c) The Constitution should be given a generous or liberal rather than a pedantic or narrow interpretation and its interpretation should certainly not be characterised by the strictures associated with construction of an ordinary statute; and
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(c) Its history and origin may not be irrelevant, the constitution being generally speaking in the nature of a broad outline of political consensus. Nevertheless though liberality in its interpretation is intended to ensure the meaningful operation of such agreement, that liberality must be confined within the structure of the instrument.
Long before 1962 - as section 1 seems to confirm - the common law of England which is and has been for a very considerable time a part of the law of this country had not only secured to its people, but had developed a body of rules and procedures designed to protect and therefore to recognise and keep in existence, all the rights and freedoms catalogued in section 1 of the 1962 Constitution.
It seems to me the that sections 1, 2 and 6 must be read together for an understanding of the full meaning and affect of anyone of them.
In Terence Thornhill v The Attorney General of Trinidad and Tobago [1981] A.C. 61 Lord Diplock delivered the opinion of the Privy Council. Dealing with the submission that the effect of section 3 of the Constitution was to reduce the ambit of sections 1 and 2 to “rights … which can be shown to have been lawfully enforceable ------prior to the coming into force of the 1962 Constitution, he said (pp 69F - 71D):
“Sections 1 to 3 of the Constitution proceed on the presumption that human rights axed fundamental freedoms that are referred to in sections 1 and 2 were already enjoyed by the people of Trinidad and Tobago under the Law in force there at the commencement of the 1962 Constitution. The enacting words of section 1 are that the then existing...
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