Vernon Sookoo v The Chief of Defence Staff

• Jurisdiction: Trinidad & Tobago
• Judge: Madame Justice Margaret Y Mohammed
• Judgment Date: 29 June 2022
• Neutral Citation: TT 2022 HC 149
• Docket Number: Claim No. CV 2020-02285
• Court: High Court (Trinidad and Tobago)

BETWEEN

Vernon Sookoo

Claimant

and

The Chief of Defence Staff

Defendant

Before

the Honourable

Madame Justice Margaret Y Mohammed

Claim No. CV 2020-02285

REPUBLIC OF TRINIDAD AND TOBAGO

APPEARANCES

Mr Ronald Simon Attorney at Law for the Claimant

Mr Ebo Jones instructed by Mr Ryan Grant Attorneys at law for the Defendant

1 The facts in this action are from the Affidavit of the Claimant 1 (“the Claimant's Affidavit”) and the Claimant's Supplemental Affidavit 2 (“the Claimant's Supplemental Affidavit”) as the Defendant did not file any affidavits.

2 According to the Claimant's Affidavit and the Claimant's Supplemental Affidavit, the Claimant was a member of the Trinidad and Tobago Defence Force (“TTDF”) for twenty-one (21) years 220 days until 11 February 2020, when he was discharged at the rank of Corporal. During the Claimant's term

of engagement within the TTDF he was posted as a Medic to the Support and Service Battalion, Medical Inspection Room for approximately fifteen (15) years

3 The Claimant successfully participated in the Cadre Junior Basic Cadre 0502 during the period of 22 August 2005 to 25 November 2005 and was placed 30 ^th on the Seniority List within the TTDF.

4 On 9 March 2011, the Claimant was placed on Officer Commanding orders, seven (7) charges were read to him and the matter was referred for Commanding Officer orders. Thereafter, 10476 Private Tyrell T, 11658 Private Clarke K and 12018 Private Williams O were all called to give evidence in the matter.

5 On 4 November 2011, the Claimant saw OC 0154 Captain K.O.P. Francis and he was given permission to attend the Cadre on 7 November 2011, where he was informed by Chief Instructor 0146 Captain J.P Roachford to return to the Unit as he was a reserve under the Military Branch System.

6 The Claimant, 9727 Lance Corporal Suchit D and 9674 Lance Corporal Mc Knight G attended the Junior Advance Branch Cadre 1201. The said soldiers were promoted with effect on 30 September 2012 and adjustments were made to their seniority. However, the Claimant was not promoted and no adjustment was made to his seniority.

7 By letter dated 11 February 2016, the Claimant formally wrote to the TTDF requesting an adjustment in his seniority, however, no action was taken in relation to his request. In January 2017, the Claimant applied for resettlement training (“the Resettlement Training Application”) at Walden University to pursue a Masters Degree in Public Health at the cost of Two Hundred and Ten Thousand ($210,000.00) Dollars.

8 On 6 February 2017, the Claimant was interviewed by Officer Commanding, 0174 Captain F. Modeste-Gibbs who acknowledged the Resettlement Training Application and informed the Claimant that the permitted amount for resettlement training cost was Sixty Thousand ($60,000.00) Dollars.

9 The Claimant was made aware on 22 June 2017, that there were administrative delays which were cleared up by Commanding Officer, 0110 Lieutenant Colonel P.B. Ganesh who signed the Resettlement Training Application submitted by the Claimant and it had been forwarded to the Trinidad and Tobago Regimental Headquarters.

10 On 30 January 2019, the Claimant appeared before the Commanding Officer, 0126 Major J. Mclean for the seven (7) charges laid against him and referred for Commanding Officer orders on 9 March 2011. On the said day the said charges were dismissed against him.

11 The Claimant was nominated to attend the Senior Non-Commission Officer Professional Development Course 1901 (“SNPDC 1901”) from 28 January 2019 to 25 April 2019, which he completed successfully but was not promoted with his peers. On 17 May 2019, the Claimant was interviewed by Officer Commanding, 0170 Captain A.D.J Booker (“Captain Booker”) who informed him that he would not be recommend for promotion based on his Pulheems Classification of Based Everywhere (BE).

12 By letter dated 7 June 2019, the Claimant presented an updated medical report to Captain Booker, which indicated that he was suffering from a medical disposition. Captain Booker then wrote to the Commanding Officer recommending the Claimant's promotion to the acting rank of Sergeant.

13 On 19 November 2019, the Claimant sought an interview with the Commanding Officer through the Officer Commanding, 0180 Captain B. George to get an update on his promotion and resettlement training. On 9 January 2020, the Claimant had an interview with the Commanding Officer, where she indicated that promotion is not based on the Professional Development Course but guided by the Regimental Standing Orders (Section 12- Promotion). She also informed the Claimant that she would make a recommendation to the Commanding Officer of the Trinidad and Tobago Regiment that the Claimant be promoted to the rank of Sergeant. The Claimant was sent on terminal leave from the TTDF on 16 Janaury 2020.

14 On 12 February 2020, the Claimant was officially discharged from the TTDF on the ground of “Completion of Service”. The Claimant was then sent on privilege leave for the period 15 October 2019 to 14 January 2020 and Terminal Leave for the period 15 January 2020 to 11 February 2020 pursuant to the Discharge Order dated 9 December 2019.

15 Based on the aforesaid facts, the Claimant filed the instant action where he has sought the following orders:

• a. A declaration that the discharge of the Claimant by the Chief of Defence Staff on 11 February, 2020 is a breach of the Claimant's rights to natural justice and is therefore unfair, unreasonable, null and void and of no effect;

• b. An order of certiorari to quash the decision of the Chief of Defence Staff made on 11 February, 2020 to discharge the Claimant and communicated to him on 11 February, 2020 that the Claimant is discharged from duty on the grounds of “Completion of Service” with effect from 12 February, 2020;

• c. An order of mandamus to compel the Defendant to immediately reinstate the Claimant to duty in the TTDF and to advance him to the rank of Sergeant with effect from 25 June 2019 having treated him differently from other officers similarly circumstanced;

• d. A declaration that the failure of the Chief of Defence Staff (which is continuing) to promote/ advance the Claimant to the rank of Sergeant on or before his run off date (retirement date) on 11 February, 2020 is in breach of the Claimant's right to legitimate expectation on the principles of fairness, natural justice and reasonableness;

• e. A declaration that the failure of the Chief of Defence Staff (which is continuing) to not afford the Claimant the opportunity to proceed on two (2) years resettlement training, prior to his run off date (retirement date) on 11 February, 2020 is in breach of the Claimant's right to legitimate expectation on the principles of fairness, natural justice and reasonableness;

• f. A declaration that the said decisions/ omissions by the Chief of Defence Staff were unreasonable, irregular, irrational or an improper exercise of discretion and in breach of the Claimant's right to legitimate expectation and the rules of natural justice and has caused the Claimant's career to be shortened and terminated prematurely;

• g. An order for monetary compensation, including aggravated and/ or exemplary damages for distress, inconvenience and loss suffered by the Claimant as a result of the breach of the principles of natural justice;

• h. Cost;

• i. Such further or other relief, including all such orders, writs and directions as may be appropriate for enforcing or securing the enforcement of the rights as the nature and justice of the case may require.

16 The parties identified various issues from the respective submissions which were filed. However, one of the challenges in identifying the issues in this matter is due to the lack of any affidavit from the Defendant responding to the Claimant's case. In my opinion, the issues which would determine if the Claimant is entitled to any of the orders which he has sought are:

WHETHER THE INSTANT ACTION OUGHT TO BE STRUCK OUT AS AN ABUSE OF PROCESS AS THE CLAIMANT HAD AN ALTERNATIVE REMEDY?

• (a) Whether the action should be struck out as an abuse of process as the Claimant had an alternative remedy?

• (b) Whether the failure by the Defendant to promote the Claimant to the rank of Sergeant on or before his run off date (retirement date) on 11 February 2020 was in breach of the Claimant's right to legitimate expectation, the principles of natural justice, reasonableness and fairness?

• (c) Whether the failure by the Defendant not to afford the Claimant the opportunity to proceed on two (2) years resettlement training prior to his run off date (retirement date) on 11 February 2020 was in breach of the Claimant's right to legitimate expectation, the principles of natural justice, reasonableness and fairness?

• (d) Whether the Claimant is entitled to damages?

17 It was submitted on behalf of the Defendant that the instant action is an abuse of process, as the Claimant had a parallel remedy under section 195 of the Defence Act 3 and the Trinidad and Tobago Regiment Standing Orders.

18 The Claimant's position was that section 195 of the Defence Act was not an available remedy to him, as prior to the date of his discharge he had no complaints and he only realised that he would not be advanced in rank when he was discharged from the TTDF, by which time he could not avail himself of any remedy under that section.

19 Section 195 of the Defence Act provides:

“195. (1) If an other rank thinks himself wronged in any matter by any officer other than his commanding officer or by any other rank, he may make a complaint with respect to that matter to his commanding officer.

(2) If an other rank thinks himself wronged in any matter by his commanding officer, either by reason of redress not being given to his satisfaction on a complaint under subsection (1) or for any other reason, he may make a complaint with...