Court of Appeal increased benefits but denied reinstatement

SACKED Policeman Orwin Williams, who was removed from office by the Police Commissioner in 1988 in the Public Interest, was granted $100, 000 for false imprisonment, and six months’ salary for wrongful dismissal, by a judge. The judge had refused an application for reinstatement.

On appeal against the latter orders, the Court of Appeal constituted by Justices of Appeal Claudette Singh, Nandram Kissoon and Ian Chang, S.C., allowed the appeal, increased the damages from six months salary to nine months salary.

The Court also refused his reinstatement on the ground that that (reinstatement) was not as of a right, according to law.

The facts of the case disclosed that the appellant Orwin Williams served the Guyana Police Force (GPF) as a constable for three years and four months. He was discharged by the Commissioner of Police.

The letter of discharge read 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 ground, inter alia, that it was wrong in law and claimed compensation and damages for loss of office. He also sought an order for reinstatement.

The trial judge awarded the appellant six months’ salary as damages for wrongful dismissal. The appellant appealed.

The Guyana Court of Appeal held:

(1) In the instant case, the Commissioner of Police had not afforded the Constable an opportunity to offer an explanation, neither was he charged, and the appellant had not known the reason which had prompted the Commissioner to terminate his service. Natural justice would require that the constable should have been aware of the evidence on which the Commissioner had acted. 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.
(2) 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.

(3) 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. It followed that the appeal would be allowed and the order of the trial judge varied in relation to the question of damages.

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, with Mr. Satran appeared for the appellant.

Senior counsel Mr.Doodnauth Singh, Attorney General with Ms. Jagnandan, appeared for the respondent.

Justice of Appeal Singh who delivered the judgment for the Court of Appeal noted that the grounds of appeal were:-

The learned trial judge 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 the 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 of Appeal Singh, the Attorney General also appealed on the ground that the award of $100, 000 for false imprisonment was excessive. However, he advanced no argument against the award. In the circumstances the award stands. The cross-appeal is accordingly dismissed.

Justice of Appeal Singh went on to state that Mr. Gibson for the appellant argued that the Commissioner in proceeding to act under section 35 did so contrary to the provisions of article 212 of the Constitution and section 8 of the Police (Discipline) Act Chapter 17:01.

She added, “However 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.

“Counsel for the appellant 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 and as such section 35 is void for inconsistency.

“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 Cooperative 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., Justice of Appeal Singh declared.

She declared, “There is evidence on the record that the Appellant worked at Linmine Constabulary since 18th September 1991. 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.

“In the present case the Commissioner undoubtedly, discharged the constable for cause since dismissal at pleasure had long ceased to exist in the country. Section 35 provides the circumstances under which a constable can be discharged. The Commissioner of Police did not afford the constable an opportunity to proffer an explanation neither was he charged. It is obvious that even if he had been given such an opportunity 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, Natural Justice would require that the constable should be aware of the evidence on which the Commissioner acted.”, Justice of Appeal Singh said.

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