STEVENEdwards, former Deputy Registrar-General, Births and Deaths, was dismissed from the Public Service, with effect from September9, 1981.
The claim in the Appellant’s first action was for damages for wrongful dismissal, and in the second, it was for the enforcement of his constitutional rights – Doctrine of res judicata therefore not applicable.
Seven years after his dismissal, Edwards sought a declaration from the High Court that he was wrongfully dismissed and damages.
His action was dismissed as being statute-barred.
His appeal to the Court of Appeal, wasallowed and the matter remitted to the High Court to be heard de novo.
The High Court againheld that the action was barred and dismissed it. A second appeal to the Court of Appeal was also dismissed.
On August 8, 2001, the Appellant filed a constitutional motion in the High Court seeking a declaration that he had been compulsorily retiredand the enforcement of his right to money due to him as salary and superannuationbenefits.
The motionwas dismissed on the ground that the Appellant having waited 20 years to bring the action, and offering no explanation for the delay, was guilty of negligence or unreasonable delay in seeking to assert orenforce aright and that the motion was an abuse of the process of the Court of Appeal.
That Court of Appeal Held: (i) The Court found no basis for Interfering with the finding of the trial judge that the institution of proceedings 20 years after compulsory retirement constituted unreasonable delay and an attempt to abuse the process of the Court;
(ii) The doctrine of res judicata did not apply to the Appellant’s claimbecause, unlikethe first claim which was for damages for wrongful dismissal, the present claim was for the enforcement of property rights under article 142 of the Constitution.
Mr. Benjamin Gibson appeared for the Appellant,
Mr. Doodnauth Singh, S.C, Attorney General, for the Respondent.
The Guyana Court of Appeal was constituted by Justices of Appeal Mr. Carl Singh, Mr.NandramKissoon and Mr. Ian Chang, S.C.
Justice of Appeal Chang, who delivered the judgment of the Court, said: On the 22nd of March 2007, this Court orally dismissed this appeal.
On the 27th ofApril,on application, the Appellant obtained the leave of this Court to appeal its decision to the Caribbean Court of Justice. The decision of the Court delivered orally on the 22nd March 2007 is now put in writing.
In March 1980, the Appellant, while holding the public office of Deputy-Registrar General, Births and Deaths, was criminally charged with the summary offence of corrupt transaction by agent, contrary to section105 (2) (a) of the Summary Jurisdiction (Offences ) Act Chapter 8:02 . However, that charge was dismissed on the 20th January, 1981.
In September, 1981 the Appellant received a letter dismissing him from the Public Service with effect from the 19th September, 1981.
On the 7th July, 1988, seven years later, inan action by writ of summons, the Appellant sought from the High Court a declaration that he was wrongfully dismissed and damages. The High Court held that this action was statute-barred and dismissed it .
However, on appeal to the Court of Appeal, the Court of Appeal allowed the Appellant’s appeal andremitted the matter to the High Court to be heard de novo.
After the matter was remitted to the High Court, the respondents in that action (who are the same respondents in this appeal) were granted leave to file an amended defence to include laches, ac quiescence and delay by the Appellant.
On the 6th of December, 1996, the High Court presided over by Justice Burch-Smith upheld the Respondent’ssubmissionthat theAppellant‘s action was barred by laches and dismissed it. For the second time, the Appellant appealed to the Court of Appeal. But on that second appeal, the Appellant failed and his appeal was dismissed.
On the 8th of August, 2001, the Appellant filed a Constitutional Motion to the High Court in which he sought the following reliefs:
“(a) A declaration that he was compulsory retired from the Public Service on the 19th day of November, 1980.
“(b) An Order directing the payment to him of the sumof $200, 289.
“(c ) An Order directing the payment to him by wayof superannuation as ex parte payment and pension.
“(d ) Costs.”
It is instructive to note that in his motion, the Appellant was not claimingdamages for wrongful dismissal but rather a declaration that he was compulsory retiredand the enforcement of his right to moneydue to him as salary and superannuation benefits.
The trialjudge in dismissing the Appellant’s Motion stated:
“The Applicant has waited 20 years to bring this action which is for arrears of salary, superannuation and pension benefits.He is surely guilty of negligence or unreasonable delay in asserting or enforcing a right.
I agree with the submission that this motion is nowan abuse of the process of the Court, which the High Court has an inherent jurisdiction to prevent. No explanation for this delay has been offered by the Applicant by way of affidavit or otherwise.
“The court is unable to interfere with the finding of fact made by the trial judge that, in filing his motion 20 years after his alleged compulsory retirement from the Public Service, the Appellant was guiltyof unreasonabledelay in asserting or seeking to enforce his claim to property rights in court. As such, this court cannot set aside the decision of the trial judge to dismiss the Appellant’s Motion for abuse of process on the ground of undue delay.
“The court, however, refrains from expressing any agreement with the trial judge that the doctrine of res judicata had applicationsince the Appellant’s claim, unlike his claim in the first action, was not for damages for wrongful dismissal in private law but for the enforcement of property rights under Article142 of the Constitution. In the early action the Appellant had claimed that he was wrongfully dismissed while in this later motion he asserted that he was compulsorily retired by theCommission.
“This appeal is accordingly dismissed on the ground that this court finds no basis for interfering with the finding of the trial judgethat theinstitution of the proceedings 20 years after compulsory retirement constituted unreasonable delay and was an attempt to abuse the processes of the court.”
By George Barclay