-awarded money, other benefits but denied reinstatement
POLICEMAN Orwin Williams, who was removed from office by the Commissioner of Police in 1988 in the public’s interest, was granted $100,000 compensation for false imprisonment and six months’ salary for wrongful dismissal by a judge. The judge however refused his application for reinstatement and the matter was taken to the Court of Appeal, then constituted by Justices Claudette Singh, Nandram Kissoon and Ian Chang, SC.

That court allowed the appeal, increasing the damages from the equivalent of six months’ salary to nine, but refused reinstatement on the grounds that it was not “as of right” according to law.

The facts of the case disclosed that Williams had served in the Guyana Police Force as a constable for three years and four months but was relieved of his duties by the Commissioner of Police.

The letter of discharge stated that the appellant’s discharge was desirable in the public interests in accordance with Section 35 (1) of the Police Act, Chapter 16:01.

The appellant challenged his removal on the grounds that, inter alia, it was wrong in law, and claimed compensation and damages for loss of office. He’d also sought an order for reinstatement.

When the matter was brought before the Guyana Court of Appeal, it was held that firstly, the Commissioner of Police had not afforded the constable an opportunity to offer an explanation, and that neither was he charged, nor had he known the reason which had prompted the Commissioner to terminate his service.
Natural justice, it was argued, required that the constable should have been made aware of the evidence  on which the Commissioner  had acted, and that although Section 35 of the Police Act did not specifically state that a hearing was required, “the justice of the common law would supply the omission  in the section,  and it would be implied as a deprivation of office by discharge or dismissal would result in loss of property;  Vickers, Sons & Maxim Ltd. V. Evans  [1910]  AC  444 and Twist  v Randwick  Municipal  Council (1976)  12 ALR  379 considered.”

In the second instance, the Appeal Court held that “whilst there was a duty to mitigate loss in the special circumstances of the instant case, the  trial judge’s order would be varied in awarding the appellant salary for a period of nine months, as that time would be ample for a person with the background of the appellant to have secured  suitable employment.”

Their third line of argument was that “reinstatement was not as of right, in that the law did not allow for the granting of specific performance of a contract for permanent services, [but that rather] it followed that the appeal would be allowed and the order of the trial judge varied in relation to the question of damages.”

In reaching its decision, the Court of Appeal referred to 12 cases in support of its judgment delivered in 2007.

At the hearing of the appeal, veteran lawyer, Mr Benjamin Gibson, and Mr Satran appeared for the appellant, while Senior Counsel and Attorney General, Mr Doodnauth Singh, and Ms Jagnandan appeared for the respondent.

Justice Singh, who delivered the judgment for the Court of Appeal, noted that the grounds of appeal was that the learned trial judge had awarded damages and compensation on the wrong principles, in that:

(a)    The Commissioner, having decided to remove the appellant from the Police Force on certain allegations, ought to have followed  the mandatory provisions set out in the Police (Discipline)  Chapter 17:01.

(b)    Had the Commissioner of Police invoked the Disciplinary Code, he was duty- bound to interdict the appellant and apply the provisions  of Section 8  of the Police  Disciplinary Code, and the learned trial judge would have had the necessary guidance for he computation of damages/compensation.

(c)    The learned judge, having declared the plaintiff wrongfully removed, ought to have ordered the plaintiff to be restored  to his office or be  superannuated  for his services. 

According to Justice Singh, though the Attorney General had appealed on the grounds that the award of $100, 000 for false imprisonment was excessive, he did not advance any  argument against it, and that in the circumstances, the award would stand and the cross-appeal accordingly dismissed.

Noting that Mr. Gibson had argued, on behalf of the plaintiff , that the Commissioner, in proceeding to act under Section 35, had done so in contravention of the provisions of  Article 212 of the Constitution and Section 8 of the Police (Discipline) Act Chapter 17:01, Ms Singh said that due to the fact that the trial judge found that the appellant was unlawfully dismissed, it would not be worthwhile to engage in a discourse as to what ought to have been done.  “I view the submissions by counsel as being totally irrelevant in the circumstances,” she said, adding that since Counsel for the appellant had further submitted that the power of the Commissioner, under Section 35, were replaced by the Police (Discipline) Act, Chapter 17:01, made under the 1980 Constitution, Section 35 was therefore void for inconsistency.

Said she: “I make the observation that the Police (Discipline) Act Chapter 17:01 was enacted in 1975, and therefore could not have been made under the 1980 Constitution but that of 1966. The Act was therefore saved as an existing law under Section 7 (4) of the Constitution of the Coperative Republic of Guyana Act 1980. It therefore follows that there could have been no supersession  by the 1980 Constitution of Section 35,  since Section 35  was an existing  law  which was saved under  Section 5 (1) of the 1960 Guyana Independence Order 515/1966, as well as 7 (1) of the 1980 Constitution Act.”

Contending that there is evidence to show that the appellant had worked at the Linmine Constabulary since  September 18, 1991, Justice Singh said: “Despite the fact that he testified that he worked as a barber, there is no evidence  on record of what his income was. The defendant ought to have established this under cross-examination, but having failed to do so, it is not for the court to speculate.”

She said in closing that while there was no doubt that the Commissioner of Police  had  discharged Williams for cause, since dismissal at pleasure had long ceased to exist in the country, he did not afford him an opportunity to proffer an explanation neither was he charged. “It is obvious that even if he had been given such an opportunity,” she said, “he might not have been in a position to offer an explanation, when he did not know the reasons which prompted the Commissioner to so act,” and that as such, “natural Justice would require that the constable should be aware of the evidence  on which the Commissioner acted.”

The appeal was allowed and the order of the trial judge varied in relation to the question of damages.