The Attorney General of Trinidad and Tobago v The Tobago House of Assembly
| Jurisdiction | Trinidad & Tobago |
| Judge | Madam Justice Margaret Y. Mohammed |
| Judgment Date | 01 April 2022 |
| Neutral Citation | TT 2022 HC 073 |
| Docket Number | Claim No. CV2021-04513 |
| Court | High Court (Trinidad and Tobago) |
IN THE MATTER OF THE TOBAGO HOUSE OF ASSEMBLY ACT CHAPTER 25:03
IN THE MATTER OF THE INTERPRETATION OF THE TOBAGO HOUSE OF ASSEMBLY ACT CHAPTER 25:03, THE INTEGRITY IN PUBLIC LIFE ACT, CHAPTER 22:01 AND THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO
the Honourable Madam Justice Margaret Y. Mohammed
Claim No. CV2021-04513
IN THE HIGH COURT OF JUSTICE
Mr Fyard Hosein S.C, Mr Rishi Dass and Mr Kerwyn Garcia instructed by Ms Tenille Ramkissoon, Ms Hillary Muddeen and Ms Kadine Matthew Attorneys at law for the Claimant.
Mr Ramesh Lawrence Maharaj S.C., Mr John Jeremie S.C. and Mr Kiel Taklalsingh instructed by Ms Lesley Gray Attorneys at law for the First and Third Defendants
Mr Anand Ramlogan S.C., Mr Kent Samlal and Mr Jared Jagroo instructed by Ms Natasha Bisram and Mr Vishaal Siewsaran Attorneys at law for the Second Defendant.
Ms Vanessa Gopaul instructed by Mr Ryan Grant Attorneys at law for the Registration, Recognition and Certification Board.
A few days after the Tobago House of Assembly Elections on 6 December 2021 (“the THA Election”) the Claimant filed the instant action seeking certain orders which were occasioned by the Second Defendant's appointment as the Deputy Chief Secretary of the First Defendant.
The orders which the Claimant has sought in the claim are:
-
(1) The determination and interpretation of the Supreme Court, by way of Declaration or otherwise, of the following matters:
-
(a) whether, on a proper construction of the Tobago House of Assembly Act Chap 25:03 (“the THA Act”), a Secretary is entitled to concurrently engage in the activity of being either:
-
(i) the President of the Public Services Association of Trinidad and Tobago ; and/or
-
(ii) a member of the Registration Recognition and Certification Board.
-
-
(b) Whether, on a proper construction of the Integrity in Public Life Act Chapter 22:01, a Secretary is entitled to concurrently engage in the activity of being either:
-
(i) the President of the Public Services Association of Trinidad and Tobago; and/or
-
(ii) a member of the Registration Recognition and Certification Board.
-
-
-
(2) A declaration as to the proper construction of sub-section 16 (8) the THA Act and in particular a determination as to whether:
-
(a) the expression “for profit or remuneration”
-
(i) is limited only to payment of benefits or remuneration or whether it includes other benefits which may accrue from engaging in an activity;
-
(ii) qualifies only the noun “undertaking” or qualifies also other nouns in subsection 16 (8);
-
-
(b) the prohibition on engaging in activities in that subsection is avoided where a member of the Executive Council continues to act in a position which carries an entitlement to profit or remuneration but merely foregoes receipt of such profit or remuneration.
-
-
(3) Such further and/or other relief and/or direction and/or guidance as may be deemed just to resolve the issues raised by the appointment of the Second Defendant as the Deputy General Secretary of the Tobago House of Assembly (“the Assembly”) while he continues to act as the President of the Public Services Association.
-
(4) No orders as to costs.
The First and Third Defendants have applied 1 (“the First and Third Defendants' Application”) to strike out or dismiss the claim on the grounds that it is an abuse of process. In support the Third Defendant filed an affidavit (“the Augustine Affidavit”) which represented his position and that of the First Defendant on 5 January 2022.
They contend that the factual premise of the Claim has been extinguished and the substantive action is now purely academic, as the Second Defendant has effectively resigned as the President of the Public Services Association (“the PSA”) and as a member of the Registration, Recognition and Certification Board (“the RRCB”); and there is no practical benefit to the public for the claim to proceed where the orders sought are hypothetical and academic.
The Second Defendant also applied 2 (“the Second Defendant's Application”) to strike out the claim. In support the Second Defendant filed his affidavit on 5 January 2022 (“the Duke Affidavit”). The Second Defendant contends that the claim is an abuse of process as the Claimant failed to comply with the mandatory Pre-Action Protocol Practice Direction; he is not a proper party to the instant action; and there is no genuine, issue for the Court to determine since he has resigned from his positions as the President of the PSA and as a member of the RRCB.
In response to the aforesaid applications to strike out the claim, the Claimant relied on his affidavit filed on 16 December 2021 (“the Claimant's First Affidavit”) and 10 January 2022 (“the Claimant's Affidavit in Reply”) and the affidavit of Tenielle Ramkissoon filed on 17 December 2021. The Claimant contends that the issues raised in the Fixed Date Claim are still live; having regard to the nature of an interpretation claim, the Second Defendant is a proper party to these proceedings; based on the circumstances of the instant claim the Claimant was entitled to exercise its discretion not to comply with the Pre — Action Protocol Practice Direction.
The RRCB was joined as an interested party by Order of the Court dated 20 December 2021. Its position was set out in the affidavit of Mr Emerson Martin (“Mr Martin”) filed on 29 December 2021 (“the Martin Affidavit”).
I have decided to dismiss the First and Third Defendants' Application, as I am of the view that the orders sought in the reliefs at paragraphs 1 and 2 of the Fixed Date Claim are not academic. In my opinion, there is a live issue to be determined as there is a period of overlap when the Second Defendant held the position of Deputy Chief Secretary, President of the PSA and member of the RRCB i.e. 9 December 2021 to 31 December 2021 and 9 December 2021 to 20 December 2021 respectively.
In my opinion, a determination of the live issue for this period of overlap would clarify if the Second Defendant could be a member of the RRCB and Deputy Chief Secretary from 9 December 2021 until section 21 (6)of the IRA was complied with. It would also clarify if the RRCB is still liable to pay the Second Defendant his salary and allowance for the period 9 December 2021 until his resignation complied with the aforementioned section. With respect to the period of overlap as President of the PSA, in my opinion, the live issue is whether during the period 9 December 2021 to 31 December 2021 it was permissible under the THA Act for the Second Defendant to hold office as Deputy Chief Secretary while he was still the President of the PSA. The finding on this live issue in the substantive claim, would impact on the Second Defendant's rights, duties and obligations as Deputy Chief Secretary during the said period. The answers to these issues are not to be determined at this preliminary stage, but rather in the substantive hearing.
The relief in paragraph 3 of the claim is academic as the Second Defendant was no longer the President of the PSA as at 31 December 2021.
Having found that the orders sought at paragraphs 1 and 2 of the claim are not academic, there is no burden on the Claimant to establish the exceptional circumstances for this Court to hear an academic claim.
The claim which is to proceed is only with respect to the Second Defendant as the Claimant failed to properly plead any claim with respect to Mr Joel Sampson (“Mr Sampson”) and Mr Nigel Taitt (“Mr Taitt”).
With respect to the other grounds, relied on by the Second Defendant to strike out the claim, I am of the opinion that the Pre-Action Protocol Practice Direction is discretionary and the failure by the Claimant to comply with it, is not by itself a sufficient basis to strike out the claim against the Second Defendant. In my opinion, the consequence of failing to comply with the said Practice Direction is that an order for costs can be made against the Claimant.
However, I have decided to strike out the claim against the Second Defendant on the basis that he was not properly joined as a party. Instead, I will join the Second Defendant as an interested party as the facts which triggered the claim were his conduct and he has an interest in the Court's findings with respect to reliefs 1 and 2 of the Fixed Date Claim. In my opinion, as an interested party the Second Defendant will not be exposed to costs in the claim as he can exercise his option not to make any submissions.
At the hearing of the First and Third Defendants' Application and the Second Defendant's Application the following facts were not in dispute:
-
(a) On 31 May 2019 the Second Defendant was appointed as a member of the RRCB for a period of three years. At the time of the said appointment the Second Defendant was the President of the PSA and as a member of the RRCB he received salary and allowances.
-
(b) The THA Election were on 6 December 2021.
-
(c) At the time of the THA Election, the Second Claimant held positions as President of the PSA, Assistant Manager of Employee Relations at the Water and Sewage Authority (WASA) and was a member of the RRCB.
-
(d) On 9 December 2021 at the 12 th inauguration ceremony of the Assembly, the Second Defendant was elected by the Assembly as its Deputy Chief Secretary and a member of the Executive Council of the Assembly. The Third Defendant was elected as the Chief Secretary.
-
(e) The Claimant wrote to the Third Defendant by letter dated 9 December 2021 concerning the eligibility of the Second Defendant to hold the position of Deputy Chief Secretary of the Assembly, while also holding the positions of President of the...
To continue reading
Request your trial