Vijay Singh v The Ombudsman

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Mendonca,Rajkumar,Bereaux
• Judgment Date: 22 May 2017
• Neutral Citation: TT 2017 CA 66
• Docket Number: CIV. APP. No. S-89/2017
• Date: 22 May 2017

Court of Appeal

Mendonça, J.A. Bereaux, J.A.; Rajkumar, J.A.

CIV. APP. No. S-89/2017

Vijay Singh

and

The Ombudsman

Appearances:

Mr. Anand Ramlogan SC, Ms. Jayanti Lutchmedial and Mr. Douglas Bailey, Instructed by Ms. Alana Rambaran, on behalf of the Appellant.

Mr. Elton Prescott SC instructed by Mr. Rikki Harnanan on behalf of the Respondent.

Civil appeal - Whether leave to apply for judicial review ought to have been granted — Freedom of Information Act Application — Whether the Ombudsman is a public authority within the meaning of the Freedom of Information Act — Whether the Ombudsman ought to be compelled to consider the appellant's application in accordance with the Freedom of Information Act — Whether fresh evidence should be admitted — Locus standi — Whether public interest application.

1 (PROCEEDINGS COMMENCED AT 9:53:47 A.M.)

2 JSO: In the matter of Vijay Singh v. The Ombudsman.

3 MR. SAMLAL: Good morning, My Lord. In this matter, my name is Kent Samlal. I've been asked: to hold for Ms. Jayanti Lutchmedial, who appears on behalf of the Appellant in this matter. She is led by Mr. Anand Ramlogan. My Lords, both Mr. Ramlogan land Ms. Lutchmedial are currently before the other Court of Appeal.

Mendonca

4 JUSTICE OF APPEAL Just one second. Mr. Prescott, you're for the Respondent, is that correct?

5 MR. PRESCOTT SC: Yes, My Lord. I'm leading Mr. Dookie Harnanan.

Mendonca

6 JUSTICE OF APPEAL Yes. Yes, you were saying that both Ms Lutchmedial and Mr. Ramlogan are senior in the matter.

7 MR. SAMLAL: Are currently engaged in another appeal, My Lord. We're respectfully asking, My Lord, that this matter be stood down for a few minutes so as to ascertain how long that appeal would last.

Mendonca

8 JUSTICE OF APPEAL Yes. All right. Mr. Prescott, you have any objection to that?

9 MR. PRESCOTT SC: Not at all, My Lord.

Mendonca

10 JUSTICE OF APPEAL All right, so we'll stand it down. It's now a few minutes to 10:00. Can we say not before 11:00?

11 MR. PRESCOTT SC: 11:00, My Lord.

Mendonca

12 JUSTICE OF APPEAL Yes, not before 11:00. We'll see what the position is there, at that point.

13 MR. SAMLAL: I'm grateful, My Lord.

14 (PROCEEDINGS STOOD DOWN AT 9:55:02 A.M.)

15 ————————————————————————————————

16 (PROCEEDINGS RESUMED AT 1:13:44 P.M.)

17 JSO: In the matter of Vijay Singh and The Ombudsman.

18 MS. LUTCHMEDIAL: Should it please you My Lords, I am Jayanti Lutchmedial. Mr. Anand Ramlogan, Senior Counsel, leads me and Mr. Douglas Bailey for the Appellant in this matter; and we are instructed by Ms. Alana Rambaran.

19 MR. HARNANAN: My Lords with your lea e instruct and I am led by Mr. Prescott, for the Respondent.

20 JUSTICE OF APPEAL MENDOICA: Yes, Mr. Ramlogan.

21 MR. RAMLOGAN SC: My Lord, if it pleases you, this is an appeal from a decision refusing leave to apply for judicial review in the Court below.

Mendonca

22 JUSTICE OF APPEAL You have the application for fresh evidence?

23 MR. RAMLOGAN SC: Yes. And, My Lord, there is also —

Mendonca

24 JUSTICE OF APPEAL Is that being opposed, Mr. Prescott?

25 MR. PRESCOTT SC: I beg your pardon, My Lord?

Mendonca

26 JUSTICE OF APPEAL The application for fresh evidence, is it being opposed?

27 I MR. PRESCOTT SC: Yes, My Lord.

Mendonca

28 JUSTICE OF APPEAL Yes. Probably we cool hear you on that, first.

29 MR. RAMLOGAN SC: Yes, My Lord.

30 The application, My Lord, in the grounds, you will see if we apply the Ladd v. Marshall test — it is really the letter from the Ombudsman refusing the second FOIA application, to show that the Ombudsmen maintained the position that it is not a public authority within the meaning of the Freedom of Information Act. And that is relevant — well, firstly, it could not have been put before the Trial Judge because it came after the Judgment was delivered.

31 Secondly, we think that, that further evidence would have probably had important influence on the result of the case and we say that, because, if you look at the Judgment, paragraph 32, which is set out at Ground 6 of the Notice of Application, you will see that the Learned Trial Judge said that, “The Applicant now seeks to bolster his application for leave by reference to three other requests for information submitted to the Respondent on the same date as the affidavit. There is no evidence before me, as to the response of the Respondent to these requests, and it will be premature and speculative for this Court to determine that because three requests have been submitted to the Respondent, if arising out of the responses of the Respondent to the December request, they considered that an application for leave to judicial review should be filed…” then etcetera.

32 The Short point is, the judge was of the view that if he had the benefit of a response from the Ombudsman, on those outstanding FOIA applications, that that would have been a material and relevant consideration for the exercise of his judicial discretion. And insofar as the evidence came after the delivery of the judgment, we say that it is plainly relevant.

33 In terms of the third limb of the Ladd v. Marshall test, the evidence is such as to be presumably believed when it comes from the Respondent and we think that the Ombudsman should be believed. The draft affidavit is very short and as I indicated before, My Lord, it is really just to exhibit that correspondence, to indicate to the Court, it is the last page, that the Respondent maintains the position, it is not a public authority.

34 Now, My Lord, all of this is relevant because we Say the public interest, in resolving the issue of whether the Ombudsman is a public authority within the meaning of the Act, did not just arise on the first application simpliciter; but it is one that would have continued, in any event, because the public would have a right to request information under the Act.

35 Now, the rules are drafted in a way that say you should avoid the multiplicity of proceedings, and so on. We came on the first application. What guarantee is there that on the second one, if we go back downstairs and are forced to file a second application for judicial review that the Ombudsman wouldn't do the same thing and say, “Well, look, without prejudice, here is the information; but I maintain, I'm not a public authority.”

36 So we think that it is extremely relevant, to the exercise of discretion, as to whether or not leave ought to have been granted; and we ask that this fresh evidence be admitted.

Rajkumar

37 JUSTICE OF APPEAL But if he does that in a second action…

38 MR. RAMLOGAN SC: If “she”.

Rajkumar

39 JUSTICE OF APPEAL “She”. …then it would not be academic in that case because you will have these letters or similar letters confirming that the Ombudsman, subsequent to the decision this case, continue to take the position that she is not a public authority.

40 MR. RAMLOGAN SC: Well with respect, no My Lord. Because the ratio decidendi of the Judge's Judgment is that it was “divorced from the facts of the case”, was the language he used. And because it was divorced from the facts of the case because the requested information was provided, then he felt that there was no longer any point in determining whether the Ombudsman is a public authority within the meaning of the Act.

Rajkumar

41 JUSTICE OF APPEAL It was divorced from any factual controversy.

42 MR. RAMLOGAN SC: Yes. To answer My Lord's question —

Rajkumar

43 JUSTICE OF APPEAL To be resolved.

44 MR. RAMLOGAN SC: Yes. If we went back and the same thing happened, it will still be divorced from any factual controversy. But my point is that there is a legal controversy.

Rajkumar

45 JUSTICE OF APPEAL And how would the new evidence make it any less divorced?

46 MR. RAMLOGAN SC: My Lord, because, in this case, My Lord, one of the arguments we have advanced is that it is a matter of constitutional importance in the public interest that the citizenry know, for a fact, Whether the Ombudsman — and also the Ombudsman, equally knows — is an office that is subject to the Freedom of Information Act.

Rajkumar

47 JUSTICE OF APPEAL You see that in this case?

48 MR. RAMLOGAN SC: Yes.

Rajkumar

49 JUSTICE OF APPEAL Now, your client has gotten what he sought?

50 MR. RAMLOGAN SC: No.

Rajkumar

51 JUSTICE OF APPEAL He has not?

52 MR. RAMLOGAN SC: No My client sought, firstly, in the application, a declaration that the Ombudsman —

Rajkumar

53 JUSTICE OF APPEAL Forgive me. In terms of the information given by the —

54 MR. RAMLOGAN SC: No. The freedom of information request was eventually satisfied on a “without prejudice” basis.

Rajkumar

55 JUSTICE OF APPEAL So what other factual controversy, in relation to your client, arises?

56 MR. RAMLOGAN SC: Well, there is a legal controversy that arises from the factual matrix. And the legal issue that arises has a factual underpinning and that is whether the Ombudsman is a public authority that is subject to the Freedom of Information Act.

Rajkumar

57 JUSTICE OF APPEAL Now, you had sought to get that declaration because it was all part of you're getting your case, and bolstering your case, your constitutional claim.

58 MR. RAMLOGAN SC: My Lord, that would be one of the reasons we sought it.

Rajkumar

59 JUSTICE OF APPEAL No. The other reason you say, in your affidavit — is it at 49 or 41 —

60 MR. RAMLOGAN SC: I'm obliged, My Lord.

Rajkumar

61 JUSTICE OF APPEAL Forty-nine of the record?

62 MR. RAMLOGAN SC: Yes.

Rajkumar

63 JUSTICE OF APPEAL You say, “Apart from the fact that I am personally aggrieved…” paragraph 20.

64 MR. RAMLOGAN SC: On page 49, My Lord?

Rajkumar

65 JUSTICE OF APPEAL Page 47.

66 MR. RAMLOGAN SC: Oh, I beg your pardon, My Lord. Sorry.

Rajkumar

67 JUSTICE OF APPEAL Beg your pardon, my mistake.

68 MR. RAMLOGAN SC: Yes.

Rajkumar

69 JUSTICE OF APPEAL “Apart from the fact that I am personally aggrieved by the...