-Finds compensation award neither unfair, nor inadequate

THE Caribbean Court of Justice, (CCJ), found that the compensation award to Police Sergeant, Mohamed Yasseen in 2004 for unlawful dismissal by the Guyana Court could not be treated as “unfair or inadequate.”

The CCJ also found that the Guyana Court of Appeal had acted correctly in finding that the High Court judge was right in refusing a claim by the appellant to a right which in the circumstances, did not exist.

The appeal was struck out.

The facts disclosed that the appellant who joined the Guyana Police Force on 15 August, 1973. He was discharged from the Force on 28 March, 1990 by the Commissioner of Police, in the public Interest.. His appeal to the Police Service Commission was disallowed.

It was not in dispute that he had been given no opportunity to be heard either by the Police Commissioner prior to his receiving his letter of termination or by the Commission before his appeal was dismissed .

He brought proceedings in the High Court claiming damages for wrongful dismissal and a declaration that his removal had been unconstitutional and of no effect.

At trial he applied to amend to include a claim that he be paid compensation and benefits as if he had been compulsorily retired from the police force.

The judge dismissed that application but found the dismissal wrongful on the ground of the Commissioner’s failure to observe the rule of natural justice and awarded damages of 24 months salary , moderated on account of the admission by the appellant that since his dismissal he had not sought other employment.

The appellant appealed to the Court of Appeal on the grounds (1) that the trial judge ought to have allowed the amendment sought , and (2) that the trial judge had wrongly mitigated compensation, mitigation not being applicable
to a deprivation of a fundamental right.

The Court of Appeal upheld the judgment of the trial judge, and in particular his taking account of the failure of the appellant to mitigate his loss, stating that the claim could not have transformed a private law action for unlawful dismissal to a constitutional matter as what was alleged was not an infringement of any fundamental right but a breach of natural justice.

The appellant appealed to the Caribbean Court of Justice, relying on the right to appeal as or right pursuant to section 6(d) of the Caribbean Court of Justice Act. Section 6 provided that ‘An appeal shall lie to the Court from decisions of the Court of Appeal as of right – …(d) in any proceedings that are concerned with the exercise of the jurisdiction conferred upon the High Court relating to redress for the contravention of the provisions of the constitution for the protection of fundamental rights.

The court raised a preliminary issue of its own motion and invited submissions from counsel as to whether in all the circumstances the appellant had an appeal as of right within the meaning of section 6(d) of the Caribbean Court of Justice Act.

The CCJ held …The appellant had no appeal as of right within the meaning of section 6(d) of the Caribbean Court of Justice Act. The claim in the instant case had not been presented as a breach of a fundamental right. Nor could it be seriously suggested that the appellant had a fundamental right to salary and pension as if he had continued in his post until his attainment of the relevant retirement age. The basic contention was that his termination was wrongful because of the Police Commissioner’s disregard of the principles of natural justice.

The right to institute an action on that ground existed independently and did not depend on, and was not concerned with , establishing the contravention of any provision of the Constitution for the protection of fundamental rights.

Further, there was no basis in principle or in decided cases for treating the policy which the courts had traditionally followed of not ordering specific performance of contracts of service as inapplicable to a contract of service which had been terminated in breach of a fundamental right protected by the Constitution.

The CCJ which was constituted by President de la Bastide and Judges Saunders and Bernard completed its hearing on March 26, 2008.

The respondent to the appeal was the Attorney General of Guyana.

The CCJ raised a preliminary issue in its own motion and invited written submissions from Counsel (Mandisa Breedy for the appellant, Prithima Tiwari Kissoon for the respondent) on whether in all the circumstances the appellant had an appeal as of right within the meaning of section 6(d) of the Caribbean Court of Justice Act.

According to President de la Bastide, “After the filing of the notice of appeal in this matter we were concerned as to whether our jurisdiction had properly been invoked and the appellant was indeed entitled to an appeal as of right pursuant to Section 6(d)n of the Caribbean Court of Justice Act as alleged by him.

Accordingly, we requested the parties to furnish us with written submissions addressing this issue. We have examined these submissions and have concluded in all the circumstances that that the appellant has no such appeal as of right, that in any event the appeal was wholly lacking in merit and that therefore it should be struck out.

The CCJ had made no order as to costs since the court had nothing before it to suggest that the respondent opposed the grant of leave to appeal.