TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CIVIL COURT OFFICE, SAN FERNANDO

Claim No. CV 2010-04777

BETWEEN

SHIRLEY SOOKAR

Claimant

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Defendant

Before the Honourable Mr. Justice R. Rahim

Appearances:

Mr. R. L. Maharaj SC and Mr. L. Lalla instructed by Mr. A. Ramroop for the Claimant.

Mr. T. Straker QC, Mr. K Ramkissoon and Ms. Z. Haynes-Soo Hon instructed by Ms. M.

Benjamin for the Defendant.

Mr. D. Mendez SC instructed by Mr. I. Ali for the Judicial and Legal Service Commission

(Interested Party).

Ms. K. Lightbourne for Routie Ramroop (Interested Party).

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JUDGMENT

1. This case concerns issues of the constitutionality surrounding judgment delivered by Justice

David Myers a Puisne Judge of the High Court (as he then was). The case is one which he

heard while holding the substantive post of Puisne Judge. However judgment was delivered

only upon his subsequent appointment to act in the office of Puisne Judge sometime after

his resignation from the substantive post.

2. By amended fixed date claim, the Claimant claims,

a) A declaration under s. 4(a) of the Constitution that the Claimant’s enjoyment of

property has been affected other than by due process of law by the failure of the

judge to deliver judgment before his resignation from his substantive post.

b) A declaration that the judge, on his resignation, ceased to have jurisdiction over the

high court action;

c) A declaration that the judgment is null and void;

d) A declaration under s. 4(b) of the Constitution that the right to protection under the

law was breached by the failure of the said judge to give judgment before he

resigned.

3. The court has heard submissions from the parties to the claim and also by way of invitation

by the court, from the Judicial and Legal Service Commission and Routi Ramroop

(interested parties), the latter having filed written submissions on the 22nd

July 2014.

History

4. By High Court Action number 1219 of 1999 (instituted under the former Rules of the

Supreme Court of Trinidad and Tobago 1975) Dolly Sookar (the mother-in-law of the

Claimant) and Routi Ramoutar (the Claimant’s sister-in-law) brought suit against Meetoolal

(the husband of the Claimant now deceased) in which they sought an order setting aside a

deed of gift dated 3rd

March 1986. By the said deed of gift Dolly herself had conveyed the

premises situate at #25 Fairley Street, Tunapuna to Meetoolal. According to the Claimant,

Dolly gave the property as a gift to Meetoolal (Dolly’ son) after which she (the Claimant)

and her husband (Meetoolal) considered the property to be theirs’. Meetoolal built a two

apartment building on the property for the purpose of rental and permitted his sister Routi

to reside in one apartment as she had no place to stay.

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5. By Deed of gift dated 2nd

October 1998 Meetoolal conveyed a life interest in the property to

himself and Claimant with remainder to their children. Routi obtained an interlocutory

injunction restraining her ejectment from the property and the injunction was ordered to

remain in place pending the trial of the action. In November 1999 the Claimant and her

two children were joined as defendants to that action.

6. The trial began in June 2000 before Mr. Justice Myers and judgment was reserved after the

trial ended in November 2000. By way of affidavit in support of her Fixed date Claim, the

Claimant stated that Meetoolal fell ill during cross-examination and was unable to complete

same. Nevertheless her attorney informed her that she had a good chance of success due to

the evidence given by Dolly and Routi. However, two years later no judgment had been

forthcoming and the Claimant caused a reminder to be given to Justice Myers that

judgment was still outstanding by letter dated 29th

January 2002. There was no response and

on 25th

August 2003 another reminder was sent. There was still however no response.

During this time Meetoolal’s health began to deteriorate. Another letter was sent on 2nd

February 2004. Two days later Meetoolal died. By the date of his death judgment was still

outstanding.

7. According to the Claimant the Judge’s secretary responded on 12th

July 2004 informing her

that judgment would be dealt with over the court vacation. However by April 2006

judgment was still outstanding and the Claimant’s daughter once again wrote to the Clerk to

the judges as she became increasingly anxious and frustrated. No acknowledgement of this

letter was received.

8. In August 2008 a notice that judgment was to be given on 15th

October 2008 was issued by

the court and sent to the Claimant. However once again judgment was not delivered as

promised. Another court notice was however issued on 14th

October 2008 informing the

Claimant that judgment would be delivered on a date to be fixed between the months of

January and June 2009. No such date was ever fixed for judgment.

9. Dolly died in August 2009. Some Two years later judgment was eventually delivered on the

27th

July 2011, almost eleven years after the end of the trial. In delivering judgment, Justice

Myers found that Routi Ramroop was a licensee and was entitled to possession of the

eastern portion of the premises rent free.

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10. However, Justice Myers had in fact resigned from the judiciary on the 21st

July 2008. It is

not in dispute that at the date of resignation (referred to as “voluntary retirement” in the

letter of the 20th

August 2013 under the hand of Michelle Mayers, Senior Legal Officer

attached to the Judiciary which is annexed as exhibit MM2 to her affidavit filed by the

Judicial and Legal Service Commission) Justice Mayers had amassed some thirty one cases

in which judgments were to be delivered. By August 2013 he had delivered all outstanding

judgments.

11. It is common ground that the state of affairs which existed and in which Justice Myers

found himself at the date of demitting office, was highly unsatisfactory and unacceptable

having regard to the continuing duty of judges and the judiciary as a whole to ensure that

decisions are given in a timely manner so as not to impose injustice on litigants. It also does

not augur well for the administration of justice in that such a state of affairs erodes public

confidence in the system of justice to which the nation subscribes and in the judiciary as an

independent institution.

12. Additionally, it is convenient to point out at this stage that as originally filed, the Claimant’s

claim was predicated on the issue of delay in the delivery of judgment, as at the day on

filing, judgment had not yet been delivered. Learned Senior Counsel for the Claimant has

however stated in clear terms that no issue is now being taken in relation to delay from the

date of trial to the delivery of the judgment and more so, no complaint is being pursued in

relation to the effect of that delay which on any view is substantial to say the least. The

Claimant has therefore withdrawn all aspects of the claim as relate to the issue of delay.

13. It is in the context of this factual matrix that His Excellency the President of the Republic of

Trinidad and Tobago appointed Justice Myers to act as a Puisne Judge of the Republic of

Trinidad and Tobago on the 27th

July 2011. The operative part of the instrument under the

hand and seal of His Excellency addressed to Mr. David Myers reads as follows:

GREETING

WHEREAS it is provided by subsection (2) of section 104 of the Constitution of the

Republic of Trinidad and Tobago that where the Chief Justice advises the President

that the state of business of the Court of Appeal or High Court so requires, the

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President acting in accordance with the advice of the Judicial and Legal Service

Commission, may appoint a person to act in the office of Justice of Appeal or Puisne

Judge.

AND WHEREAS the Chief Justice has advised the President that the state of business

of the High Court so requires.

NOW THEREFORE, I, GEORGE MAXWELL RICHARDS, President as aforesaid,

acting in accordance with the advice of the Judicial and Legal Service Commission,

appoint you, MR. DAVID MYERS to act in the office of Puisne Judge on the 27th day

of July 2011.

14. His Excellency The President of the Republic was therefore acting pursuant to the power

of appointment set out at S.104(2)(d)(i) of the Constitution.

The Claimant’s submissions

15. The Claimant orally submitted that the first issue is whether Justice Myers could have

continued to perform the functions of a judge and give judgment after his resignation in

2008. Learned Senior Counsel submitted that bearing in mind that Justice Myers was re-

appointed as a temporary judge for a particular day to deliver the said judgment, the

question that arises is whether there lies a section in the constitution that gives power for

that purpose. Senior Counsel submitted that there is none. In this regard Senior Counsel

for the Claimant began his submissions to the court by saying that this case is not about the

interpretation of any particular provision of the Constitution and the court should not

approach it as such. According to Senior Counsel, at the heart of the case lies the existence

or not of a power to re-appoint a judge for a day to give judgment in a matter of which he

was seized, upon his resignation simpliciter. Senior Counsel submitted that if the court was

to find that there does exists such a power, in any event, Justice Myers had no jurisdiction

to adjudicate and determine the case because the re-appointment could not retrospectively

give him jurisdiction when he was not functioning as a judge after retirement in 2008. It was

further submitted that without specific statutory provisions allowing for the return of Justice

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Myers to give judgment, Justice Myers became functus officio upon his resignation from the

bench on July 31, 2008 and that his judgment of July 27, 2011 was a nullity and of no effect.

16. In this regard it was further submitted that because section 136(2) of the Constitution

specifically provides for continuity in office of judges who have attained the age of

retirement for the purpose of delivery of judgment or to enable them to do any other thing

in relation to proceedings that were commenced before them before they would have

attained the said age, by application of the principle of expressio unius est exclusio alterius,

section 104 ought not to be interpreted as permitting the re-appointment of a judge to for

the purpose of delivery of judgment after resignation.

17. The court therefore understands Counsel’s general submissions to be that the failure of

Justice Myers to give his judgment prior to resignation and only upon re-appointment

sometime thereafter, when he would have not had the jurisdiction to deliver judgment in

that case was unlawful thereby rendering the judgment null and void and would therefore

have and did deprive the Claimant of her right to the enjoyment of property without due

process of law (s. 4(a) of the Constitution) and the right to protection of the law s. (4(b) of

the Constitution).

18. It is also submitted that having regard to the provisions of section 107 of the Constitution,

Justice Myers would have broken his judicial oath by non delivery of his outstanding

judgments prior to resignation. Further, that at the time of deliberation he would not have

been subject to the judicial oath and as a consequence the Claimant was deprived of the

protection of the law.

19. The Claimant submitted that by virtue of section 5(2)(e) and (h) of the Constitution, due

process includes the right to a fair hearing in accordance with the principles of fundamental

justice and the right to such procedural provisions as are necessary for the purpose of

giving effect and protection to the aforesaid right.

20. The Claimant therefore sets out three main issues in their written submissions namely:

a. Did the acceptance of the resignation of Justice Myers before he gave his judgment

interfere with the Claimant’s sections 4(a) and (b) rights.

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b. Did the re-appointment of Justice Myers for the purpose of delivery of the

judgment breach the said section 4(a) and (b) rights.

c. Did Justice Myers in the absence of any constitutional or statutory provision and in

the light of section 107 of the Constitution have any power to perform the duties of

a judge to adjudicate the said suit after resignation whilst not appointed a judge and

not under the oath of a judge.

21. The court does not agree that the issue raised at 20(a) above is one for the court’s

consideration. In oral submissions learned Senior Counsel for the Claimant accepted that

there may in fact be no power vested in the relevant authority to refuse to accept a

resignation. In other words, while moral suasion along with other managerial devices may

be used to persuade a sitting judge to complete his judgments before resignation, there is no

constitutional prohibition in respect of the resignation of a judge and the issue of

acceptance of resignation does not therefore arise. In any event, the case was not argued on

this basis during oral submissions.

The Defendant’s submissions

22. The oral submissions of learned QC for the Defendant appears to be somewhat in material

conflict with the written submissions filed by the Defendant prior to the hearing of this

claim, in that the Attorney General appears to have taken a different approach to the issues

from that previously articulated. Suffice it to say, Counsel for the Defendant has made the

position of the Defendant abundantly clear and final in his oral address to this court.

23. The Defendant says, that it is inconceivable that prior to the enactment of the constitution,

no judgments had been given by judges who had prior to the giving of the judgments retired

or resigned. That it is improbable that the Constitution was enacted to preclude that

possibility. Further, that it does not appear that anyone considered it to have that effect

given the practice that has continued of judgments being given post retirement or

resignation. This court must at this stage pause to observe that no evidence of the practice

of the courts in that regard has been led by any of the parties to this claim. So that the court

does not have a precise breakdown in terms of resignations/retirements and re-

appointments for the purpose of delivery of judgments. However the court is of the view

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that the practice set out by the Defendant is one in respect of which a court can take judicial

notice. By way of example it is known that some trials take months (although such an

occurrence is rare) and in at least one case more than a year. In the latter case the trial

judge completed the case close to retirement and so was unable to deliver judgment prior to

retirement despite extensions granted having regard to the sheer volume of evidence and

arguments presented. In that case the said judge was subsequently re-appointed to deliver

the said judgment. A similar situation arose in the criminal courts where a trial judge who

had previously resigned was re-appointed to deliver sentence in the case of a prisoner who

had been convicted before his resignation. To that end, this court agrees that a practice has

developed whereby judges who have since retired or resigned have been re-appointed to

deliver outstanding judgments.

24. In the context of the present circumstances, it is the submission of the Attorney General in

relation to the failure of Justice Myers to give judgment before he resigned that it is

undesirable for a judge to resign with thirty undelivered judgments. In so submitting the

Defendant queries whether as a matter of law and constitutionality, a judge can resign when

he has outstanding judgments. In that respect it is to be noted that the Claimant submitted

and the court agrees that there appears to be no clear constitutional power to refuse the

resignation of a judge. So that the issue according to the Defendant becomes one of

effective management by the judge who may have approached the Honourable Chief

Justice considerably earlier with a view to enabling him to organise his work so that he

could deliver judgments timeously. This court accepts however, that while an early

approach to the Chief Justice may be appropriate in some circumstances, other

circumstances are bound to arise in which such planning and approach are wholly

impractical.

25. According to the Defendants therefore, the issue of failure to deliver judgment before

resignation can be viewed from the perspective of a breach of the Judge’s oath by the judge.

The Defendant submits that while a judge who allows a considerable number of judgments

to remain outstanding for a long period of time may be in breach of his judicial oath (a

submission made by the Claimant), a breach of the oath does not necessarily lead to the

conclusion that there has been a breach of the Constitution. The defendant submits that

there are no jurisprudential reasons precluding a judgment from being given by a judge who

has since demitted office as the case has already been heard and the judge was qualified at

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the time to hear the case. There is therefore no reason why judgment should not be

delivered to reflect the hearing that took place. Further, that the constitution does not

provide that the judicial system has to secure that a judge must give judgment prior to

demitting office. That so to do, would run counter to the experience and practice of the

common law world.

26. In closing, the Defendant has made it clear that the approach of the Attorney General was

to bring to bear certain principles for the court’s consideration in the circumstances of this

case for the court’s assistance and not to proffer any definite position on the issues either

way.

Submissions of the Judicial and Legal Service Commission(JLSC)

27. The JLSC submits through Learned Senior Counsel that the crux of this case turns upon

the proper interpretation of section 104 of the Constitution under which Justice Myers was

appointed so as to permit him to deliver judgment. That a judge who resigns may be put in

the same position regarding outstanding work as a judge who retired leaving outstanding

work and may continue in office under section 136(2) of the Constitution to complete such

outstanding matter. According to the JLSC, the case for the Claimant suggests that in the

case of a judge who resigns, the position would be in the same as that which applies when a

Judge dies as he can never be re-appointed to deal with outstanding judgments but that the

two positions are not similar and ought not be elevated to the same level. In that regard it is

clear that the Constitution adequately provides for the former. It is also submitted that there

is nothing in the Constitution which prohibits the reappointment of a judge who has retired

or resigned.

28. It is submitted further that a person will be afforded his right to the protection of the law if

the re-appointment of the judge who heard his matter could be made so as to facilitate his

delivery of judgment as this would complete the process already begun without the need to

begin de novo. The JLSC therefore submitted that in deciding whether section 104 (2)

provides for the appointment of Justice Myers to give the outstanding judgment the court

must properly construe the provision. That in so doing the court should eschew tabulated

legalism and adopt a purposive and generous approach to the interpretation of written

constitutions. That the Constitution must be interpreted so as to be consistent and not

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inconsistent with the fundamental rights and freedoms guaranteed therein, which in this

case, means that it must be interpreted to give effect to the parties’ rights to delivery of

judgment in a case which has been completed prior to the resignation of a judge and their

right to such procedural provisions as are necessary for the purpose of giving effect and

protection to those rights. That the right to due process would be of little value if such a

process did not exist.

29. In relation to the principle of expressio unius est exclusio alterius, it is submitted that the

principle is non-applicable to the circumstances of this case for three reasons. Firstly, that

section 104 expressly provides for the re-appointment of retired judges without limitation

on the work they may be assigned to do. Therefore section 136(2) was not intended to

cover the field of possibilities. Secondly, that the principle must give way to the overriding

need to interpret section 104 to give effect to the fundamental rights and freedoms. Finally,

that to apply the principle would be to do an injustice.

30. It is also submitted that although Justice Myers would have deliberated and made up his

mind while not holding judicial office, (in respect of which there is no evidence to support

this assumption before the court), once he was appointed to act he would have adopted

those conclusions as a judge and that there is nothing objectionable in those circumstances.

Therefore section 104 when properly interpreted permits the re-appointment of a judge

who has since resigned for the purpose of delivery of judgment.

31. The JLSC also submitted that there were alternative remedies available to the Claimant.

Suffice it to say that the court is of the view that there would have been no alternative

remedy to the challenge to the jurisdiction of the court to deliver judgment. The alternative

remedy in the form of an appeal would have been applicable to the substantive claim.

The submissions of Routi Ramroop

32. Counsel submitted that the provisions of section 104 are wide enough to include the re-

appointment of a judge who has resigned for the purpose of delivery of judgment. That the

basis of such appointment would be that the state of business of the High Court requires

that outstanding judgments be given and therefore on a wide interpretation, section 104

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permits such an appointment notwithstanding that the Constitution makes no clear

provision for same.

33. Additionally, as in the case of the JLSC and the Defendant, submissions were also made in

writing by Ramroop in relation to the issue of delay but it has since become unnecessary to

treat with this issue as the Claimant has abandoned all issues relating to delay.

The Common thread of the submissions

34. It is clear to the court that this case pivots on the interpretation to be given to section 104 of

the Constitution read in conjunction with the relevant provisions of sections 107 and 136.

In this regard, the court does not agree with the opening salvo of learned Senior Counsel

for the Claimant that this case is not about interpretation. In fact, the court is of the view

that the submissions of the Claimant go as far as acknowledging that interpretation is an

inevitable feature of this case. This is so as the Claimant has asked the court to apply the

well known principle of statutory interpretation expressio unius est exclusio alterius. By the

very nature of this submission, the Claimant is asking the court to find that the express

inclusion of a provision for the continuation in office of a judge who retires means the

exclusion of a similar power in respect of a judge who has resigned. But for the court so to

find, it would inevitably mean that the court would have to consider the provisions of

section 104 to ascertain whether the power to re-appoint a judge who has resigned to

deliver outstanding judgments is in fact not included within the terms of that section, for if it

is, then the application of the principle of expressio unius est exclusio alterius would

achieve a result that is manifestly contrary to the provisions set out in the constitution in that

regard. In other words, before consideration can be given to the application of the principle

it must be ascertained if such a power is in fact excluded by section 104 which exercise

necessarily involves an interpretation of the relevant parts of section 104. The court’s

enquiry into the existence of such a power is therefore fundamental to determination of the

claim both under sections 4(a) and 4(b) of the Constitution.

35. The court must therefore ask itself the following questions:

i) Does the Constitution provide for a procedure whereby a judge who has

resigned may be subsequently appointed to act in the office of judge.

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ii) If the answer is yes, then does the Constitution provide a due process for the

delivery of judgment by an acting judge who has been so appointed in a case

which has been tried before that judge while sitting during the period of his

substantive appointment prior to resignation.

iii) If the answer to either or both of those questions is no, then has the Claimant in

this case been deprived of enjoyment of property as a consequence, if so, does

the re-appointment of Justice Myers amount to the use of a process which does

not protect the fundamental right of the Claimant to the enjoyment of her

property.

iv) If the answer to either or both questions one and two is no, then did the re-

appointment of Justice Myers to deliver judgment deprive the Claimant of the

protection of the law.

THE CONSTITUTION

36. As relates to the relief sought by the Claimant, section 4 of the Constitution provides;

It is hereby recognised and declared that in Trinidad and Tobago there have existed and

shall continue to exist, without discrimination by reason of race, origin, colour, religion or

sex, the following fundamental human rights and freedoms, namely–

(a) the right of the individual to life, liberty, security of the person and enjoyment of

property and the right not to be deprived thereof except by due process of law;

(b) the right of the individual to equality before the law and the protection of the law.

37. The relevant sections as relate to the appointment of Judges are sections 104(1),

104(2)(d)(i), 107 and 136(1) and (2) hereinafter set out as follows:

104. (1) The Judges, other than the Chief Justice, shall be appointed by the President, acting in accordance with the advice of the Judicial and Legal Service Commission.

(2) Where—

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(d) the Chief Justice advises the President that the state of business of the Court of Appeal or the High Court so requires, the President, acting in accordance with the advice of the Judicial and Legal Service Commission—

(i) may appoint a person to act in the office of Justice of Appeal or Puisne Judge, as the case may require;

107. A Judge shall not enter upon the duties of his office unless he has taken and

subscribed the oath of allegiance and the oath for the due execution of his office set out

in the First Schedule.

136. (1) The holder of an office to which this subsection and

subsections (3) to (11) apply (in this section referred to as “the

officer”) shall vacate his office on attaining the age of sixty-five

years or such other age as may be prescribed.

(2) Notwithstanding that he has attained the age at which he is required by or

under subsection (1) to vacate his office, a Judge may, with the permission of the

President, acting in accordance with the advice of the Chief Justice, continue in

office for such period after attaining that age as may be necessary to enable him

to deliver judgment or to do any other thing in relation to proceedings that

were commenced before him before he attained that age.

38. It is to be noted that section 66(1) of the 1962 pre-republican Constitution contains a

similar provision as that set out in paragraph 136(2) supra in terms of the judge having

attained the age of retirement only.

39. The judge’s oath as set out in the First Schedule to the Constitution is as follows;

“I, A.B., having been appointed a (Puisne Judge) of Trinidad and Tobago do swear

by .. (solemnly affirm) that I will bear true faith and allegiance to Trinidad and Tobago

and will uphold the Constitution and the law, that I will conscientiously, impartially and

to the best of my knowledge, judgment and ability discharge the functions of my office

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and do right to all manner of people after the laws and usages of Trinidad and Tobago

without fear or favour, affection or ill-will.”

Does the Constitution provide for a procedure whereby a judge who has resigned may be

appointed to act in the office of judge.

40. It appears not to be in dispute between the parties and quite correctly so in the court’s view,

that the provisions of section 104(2)(d)(i) of the constitution do not prohibit the

appointment of a person who has demitted the office of Judge by way of resignation from

being appointed to act as a judge once the requirements as to prescribed qualifications are

met and the Honourable Chief Justice advises The President that the state of business of

the High Court requires such an appointment. In fact section 39(1)(b)(i) of the

Interpretation Act Chap 3:01 appears to expressly permit it as follows;

39(1) Subject to the Constitutional Laws of Trinidad and

Tobago, words in a written law authorising the appointment of a

person to any office shall be deemed also to confer on the

authority in whom the power of appointment is vested—

(a) power, at the discretion of the authority, to

remove or suspend him; and

(b) power, exercisable in the like manner and

subject to the like consent and conditions, if any,

applicable on his appointment—

(i) to reinstate him on his suspension, or

reappoint him on his removal, his

resignation, the expiration of his office,

or otherwise;

So that the simple answer to this issue lies in the affirmative.

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Does the Constitution provide a due process for the delivery of judgment by an acting judge

who has been so appointed in a case which has been tried before that judge while sitting during

the period of his substantive appointment prior to resignation

41. The Claimant submits that there is no provision which permits the re-appointment of the

Judge for the purpose of delivery of outstanding judgments as the Constitution envisages

that a judge will not demit office before his retirement age. The Constitution therefore

makes provision for the continuation in office of judges who have come to that age at which

they must retire in law. As a consequence, the judge who resigns prior to the age appointed

by law for retirement becomes functus officio and cannot be reappointed for the purpose

of delivering judgments in cases in which he is now functus officio. That upon becoming

functus, the judge could not in law continue to adjudicate and/or decide the suit. The

Claimant has relied on the Privy Council case of Sookoo v The Attorney General of

Trinidad and Tobago (1985) 33 WIR 338 in support of her submission that the power to

continue in office conferred in the constitution is one which ought not to be abused and no

challenge is made to that proposition. Sookoo remains good law in that regard.

42. The facts of Sookoo are however of some interest and deserve mention. In June 1985,

shortly before he reached retiring age, the Chief Justice of Trinidad and Tobago, The

Honourable Mr. Justice C. Kelsick, wrote to the President of the Republic and formally

advised the President to grant him permission in accordance with section 136(2) of the

Constitution “to continue in office … until the end of the short term, so as to enable me to

deliver judgment and to do any other thing in relation to proceedings that were commenced

before me prior to my attaining the retiring age”. Permission was granted. On the day

following that on which the Chief Justice attained retiring age the plaintiffs filed an

originating summons to determine the validity of a writ witnessed by the Chief Justice in the

High Court. At the hearing of the summons, Deyalsingh J ruled that the President had no

power to allow the Chief Justice to continue to perform the functions of Chief Justice, that

the Chief Justice could continue in office under section 136(2) only as a judge to deliver

judgments etc in proceedings commenced before him before he attained retiring age, and

that while he so continued in office the Chief Justice could not validly perform the

functions of Chief Justice. The judgment of Deyalsingh J was reversed by the Court of

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Appeal. The plaintiffs appealed to the Privy Council. Their Lordships held, inter alia, that

the expression “continue in office” in section 136(2) meant continue in the office which the

judge held on attaining retiring age; in the case of the Chief Justice, he continued in office

as Chief Justice and during his continuance in office his functions were not restricted to the

completion of unfinished business.

43. At page 375, paragraph b of the Privy Council judgment, Their Lordships endorsed the

dicta set out by Warner JA in delivering one of the judgments of the Court of Appeal and

this court has found that dicta to be helpful. Warner JA had this to say when treating with

the appeal;

“It was not disputed that the object sought to be achieved in enacting section 136(2) was

to avoid cases in progress before the judge just before he attained the age of sixty-five

having to be taken de novo.

It was, however, argued for the Attorney-General that Parliament had opted for this

risk. It was pointed out that there were two methods of achieving the object of avoiding

cases pending when the judge attained the age of sixty-five having to be taken de novo.

One of these was to allow the termination to take effect and merely permit the holder

of the office, now a former judge to sit as a judge for the purpose of completing the

incomplete matters. This method was shown to be used in the Constitution of

Barbados and in the West Indies Associated States Supreme Court Order 1967. The

other was to postpone the vacating of the office of the judge for a period to be

determined as necessary for the completion of the pending court matters and permit a

judge to continue to hold his office with his powers undiminished. This was the method

used in our own Constitution and in several Commonwealth Caribbean jurisdictions

other than Barbados.

The argument that this was the deliberate choice of our own Parliament was supported

by a contrast between the language of the Barbados and Associated States provisions on

the one hand and that of our own provision.

In the West Indies Associated States Supreme Court Order 1967, section 6(4) reads as

follows:

'Any person appointed to the office of, or to act as, Chief Justice, justice of appeal or

puisne judge may notwithstanding the vacation of his office or the termination of his

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appointment otherwise than in pursuance of section 8 of this order, sit as a judge for the

purpose of giving judgment or otherwise in relation to any proceeding heard by him

while holding the office of judge.'

This allows all judges who have vacated office, or whose appointments have been

terminated otherwise than by removal from office, to sit after having vacated office and

complete proceedings which were before them before vacating office.

What is very obvious is that in these cases the judges do not continue in office. The

expression “continue in office” is used in a proviso to section 8 of the West Indies

Associated States Supreme Court Order 1967 which permits judges who attain the age

at which they must vacate to continue in their office with the permission of the Judicial

and Legal Service Commission, acting with the concurrence of the Premiers of all the

States. These provisions bring out in bold relief the distinction between allowing a

former judge to sit for the purpose of completing unfinished court business and

continuing as a judge in office for a fixed period whether for a specific purpose or

not.....

In addition, Parliament in enacting the Constitution, and more particularly section

136(2), selected a form of words which showed a preference for allowing continuation

in office with full powers, no doubt expecting that judges continued in office because

hearing of unfinished matters de novo should be avoided would exercise the prudence

and good sense to refrain from attending to new court business which could interfere

with their completion of the unfinished business. On the whole I see no justification for

construing section 136(2) otherwise than according to its plain literal meaning.”

44. This court agrees with the erudite exposition set by Warner JA in relation to the two widely

accepted processes available to treat with unfinished judicial business upon retirement. This

court would add that there is in principle no distinction to be made between the

consequences of retirement and those which attend resignation. The effect is the same. In

both cases, there is a termination of office of judge and thus he is unable to continue to

perform the functions of a judge. This is the plain and ordinary meaning to be given to

section 136(1), in that the office of Judge becomes vacant upon the office holder attaining

the age of 65 years. It is for this reason that parliament would have provided for the

continuation in office of the judge who retires. It must therefore also be the case that a

judge who chooses to resign and does resign, vacates the office of judge effective at his date

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of resignation with the result that the office becomes vacant. The difference between the

two circumstances lies solely with the imposition of a constitutional age limit in the case of

retirement. The effect on the character of the office and by extension on cases before the

said judge remains the same as a general rule.

45. A comparison of the provisions of other jurisdictions is also of benefit in this regard. In

British Columbia, section 6(1) of the BRITISH COLUMBIA SUPREME COURT

ACT[RSBC 1996] CHAPTER 443 (BCSCA) treats with the issue by providing as follows:

‘Powers after leaving office

6 (1) A judge who resigns his or her office, is appointed to another court or

ceases to hold office under section 99 (2) of the Constitution Act, 1867, may,

after the resignation, appointment or ceasing to hold office, give judgment in a

proceeding he or she heard while holding office, and the judgment is effective as

though he or she still held office.’

46. In that case, not only does the legislature acknowledge the fact of resignation of a judge

prior to retirement age but it has also provided a statutory underpinning for the jurisdiction

to give judgment after resignation. It is to be noted that there are two important aspects to

the statutory underpinning, namely, the jurisdiction of the judge who gives the judgment

and the effectiveness of that judgment. In this court’s view, the provisions of section 6(1) of

the BCSCA acknowledge that a judge who resigns would not have the power or jurisdiction

to give judgment thereafter and any judgment so given would be void and of no effect was it

not for the provisions of the said Act. This method of providing for the completion of

judicial work is akin to the first method set out by Warner JA supra.

47. The Judicature Act of Nova Scotia, Chapter 240 of the Revised Statutes, 1989, section

36(1) on the other hand provides for what one may view as a modified method of treating

with the thorny issue. In that regard a set time period after resignation is set down by law for

the delivery of outstanding judgments despite the office holder having demitted office. Here

there is no continuation in office for the purpose. Section 36(1) reads as follows;

‘Judgment by judge leaving office or absent

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36 (1) Where a judge resigns his office, is appointed to any other court or ceases

to hold office, he may at any time within eight weeks after such event give

judgment or grant an order in any proceeding previously tried or heard before

him, as if he had continued in office.’

48. Closer to home, sections 95(2) and (3) of The Constitution of the Commonwealth of the

Bahamas provide;

(2) If the office of a Justice of the Supreme Court is vacant, or if any such

Justice is anointed to act as Chief Justice or as a Justice of Appeal, or is for any

reason unable to perform the functions of this office, the Governor-General,

acting on the advice of the Judicial and Legal Service Commission, may by

instrument under the Public Seal appoint a person qualified under paragraph

(3) of Article 94 of this Constitution for appointment as a Justice to act as a

Justice of the Supreme Court, and any person so appointed shall, subject to the

provisions of paragraph (5) of Article 96 of this Constitution, continue to act for

the period of his appointment or, if no such period is specified, until his

appointment is revoked by the Governor-General acting on the advice of the

Judicial and Legal Service Commission.

(3) Any person appointed to act as a Justice under the provisions of this

Article may, notwithstanding that the period of his appointment has expired or

his appointment has been revoked, sit as a Justice for the purpose of delivering

judgment or doing any other thing in relation to proceedings which were

commenced before him while he was so acting.

49. In the case of The Bahamas, the legislature chose the first of the methods set out by

Warner JA. In this way, it appears that no appointment post expiration of term is necessary

as the officer holder is free to deliver judgment thereafter.

50. Section 79G(2) of the Constitution of Barbados provides for the appointment of judges to

the Caribbean Court of Justice as follows;

A Judge of the Court shall hold office until he attains the age of 72 years or sooner resigns or retires.

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Section 79G(3) reads;

Notwithstanding that

(a) he has attained the age at which he is required by the

provisions of this section to vacate his office; or

(b) he has retired or resigned before reaching such age,

the President or other Judge of the Court may sit as a Judge for the

purpose of delivering judgment or doing any other thing in relation to

proceedings which were commenced before him before he attained

that age or, as the case may be, retired or resigned.

51. Similarly, sections 82(1) and (2) of the said constitution provide for the appointment of

persons to act in the office of Chief Justice and Judge of the Supreme Court of Barbados.

Further subsection 4 provides;

Any person so appointed may, notwithstanding that the period

of his appointment has expired or his appointment has been revoked,

sit as a Judge for the purpose of delivering judgment or doing any

other thing in relation to proceedings which were commenced before

him while he was acting as such.

52. Additionally, section 84 provides;

84. (1) Subject to the following provisions of this section, a

person holding the office of a Judge shall vacate office when he

attains,

(a) in the case of a Judge of the High Court other than the Chief

Justice, the age of sixty-five years; and

(b) in the case of the Chief Justice and a Justice of Appeal, the age

of seventy years.

(1A) Notwithstanding subsection (l), the Governor-General,

acting on the recommendation of the Prime Minister, may permit

(a) a Judge of the High Court, other than the Chief Justice, who

has attained the age of sixty-five years, or

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(b) the Chief Justice or a Justice of Appeal who has attained the

age of seventy years,

to continue in office until he has attained, in the case of a Judge of the

High Court such later age, not exceeding sixty-seven years and, in the

case of any other Judge, such later age, not exceeding seventy-two

years, as may have been agreed between the Governor-General and

the Judge of the High Court or other Judge.

(2) Notwithstanding that he

(a) has attained the age at which he is required by the provisions

of this section to vacate his office; or

(b) has retired or resigned before reaching such age,

a person may sit as a Judge for the purpose of delivering judgment or

doing any other thing in relation to proceedings which were commenced

before him before he attained that age or, as the case may be, retired or

resigned (emphasis mine).

53. Section 27(1)(a) and (b) of the Judicial Pensions and Retirement Act 1993 (UK) reads;

Completion of proceedings after retirement

(1)Notwithstanding that a person has vacated or otherwise ceased to hold an office to

which this section applies—

(a)he may act as if he had not ceased to hold the office for the purpose of

continuing to deal with, giving judgment in, or dealing with any ancillary matter relating

to, any case begun before him before he ceased to hold that office; and

(b)for that purpose, and for the purpose of any proceedings arising out of any

such case or matter, he shall be treated as being or, as the case may be, as having been a

holder of that office;

but nothing in this subsection shall authorise him to do anything if he ceased to hold

the office by virtue of his removal from it.

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54. So that the provisions in Nova Scotia, British Columbia, CCJ and the Supreme Court of

Barbados provide for a method of delivery of outstanding judgments without continuation

in office. What is even more interesting in this regard is that the provisions relating to the

Supreme Court all refer to the office holder as “person” and not “judge”, an indirect

acknowledgment that there has not been a continuation of office. In fact, a reading of all the

provisions clearly demonstrates that when adopting the first method, the office of judge

becomes vacant upon resignation. Despite this vacancy and in fact it appears because of it,

the relevant legislation allows for the sitting by the person who held the office of judge for

the limited purpose of delivering judgment.

55. What the legislation does not require is the re-appointment of the person to the office of

judge for the purpose of delivering judgment and quite properly so in the court’s view. The

re-appointment to office in those circumstances becomes wholly unnecessary having regard

to the legislation which gives legal force and validity to the act of sitting to deliver

outstanding judgments without appointment and without having to take the oath of office.

However, the court understands the Claimant to be submitting that without similar

provision in this jurisdiction the effect of vacating office is that the judge becomes functus

officio at the date of resignation. She submits that it therefore means that so long as there is

no provision to either continue in office or permit the sitting for the purpose of delivery of

outstanding judgments, a subsequent appointment to act in the office of judge cannot

operate retroactively so as to vest the judge with jurisdiction which he ceased to have at the

date of resignation. Further that the judge would not have been subject to the oath of office

at the time he deliberated.

56. In determining the issue the court agrees with the submissions of the JLSC that the

Constitution must be construed generously and in such a way as to give full recognition to

and effect of fundamental rights and freedoms. It ought to be construed so as to be

consistent with, rather than detract from those fundamental rights and freedoms and the

court must adopt a purposive approach as the Constitution sets the legal architecture of the

state and must adapt to changing circumstances. See Minister of Home Affairs v Fisher

(1979) 3 All ER 21, Lord Wilberforce page 26 letters a to e; Commissioner of Police and

another (Appellants) v Steadroy C. O. Benjamin (Respondent)(2014) UKPC 8, Lord

Wilson at page 25. The court has therefore adopted an interpretation of the relevant

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sections in keeping with a view to generous construction which gives full recognition to the

effect of fundamental rights and freedoms set out in the Constitution.

57. In that regard, it is the finding of the court that a litigant is entitled to the delivery of

judgment by the judge who would have presided at trial. In this case the evidence was heard

by Justice Myers when he was lawfully appointed a judge and judgment was delivered by

Justice Myers while lawfully appointed as a judge. Justice Myers took an oath of office prior

to entering upon the duties of Puisne Judge when first appointed and was bound by that

oath when he heard the evidence in the case. In the same manner Justice Myers took an

oath of office when he was appointed to Act as Puisne Judge and so was bound by the said

oath when he delivered judgment in keeping with his duty as a judge to deliver judgment. In

that regard, the submission of the Claimant that he was not acting under an oath of office

when he deliberated and the submission of the Defendant that the issue of breach of the

judicial oath is applicable in this case are both speculative and misconceived in the court’s

view. There is no evidence as to when Justice Myers may have deliberated in this case.

Certainly it is equally possible that he may have deliberated prior to his resignation. To that

extent the submission is speculative. The submission is misconceived because what affords

protection to the public is the mandatory requirement that the office holder takes an oath

prior to entering upon the duties of judge. It means therefore that Justice Myers, at the time

of delivery of his judgment would have been acting consistent with the oath he had taken

upon being appointed to act and would have been conducting himself conscientiously,

impartially and to the best of his knowledge, judgment and ability in the discharge of the

functions of his office (that is, in delivering judgment) without fear or favour, affection or ill-

will to all people of Trinidad and Tobago including the litigants before him in the said case.

This is what the Claimant was entitled to, delivery of judgment in her case by the Judge who

heard the evidence and submissions while duly appointed as a judge pursuant to the

constitution.

58. When viewed from this perspective, it means that the Claimant has not in fact been denied

the safeguard of the taking of the oath by a person who is to embark on the duties of a

judge which the makers of the Constitution regarded as necessary. See Hinds & Others v

The Queen (1977) AC 195, Lord Diplock, pages 221 letters G to H. Had Justice Myers

purported to deliver judgment without being appointed and without having taken the oath

of the judge the position may have been somewhat different (although even in such a case

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the validity of the delivery of judgment may be upheld in the circumstances-see the

discussion on the de facto officer Doctrine set out later in this judgment).

59. The court must also factor in the context of this particular case. The facts show that Justice

Myers left some thirty one judgments outstanding at the date of resignation. Many litigants

would have been left awaiting judgment having expended considerable time and money on

litigation. Several witnesses and litigants themselves may now be unavailable to attend a trial

de novo for a wide variety of reasons including but not limited to death. A generous and

purposive interpretation of section 104 is therefore necessary. Such an interpretation would

permit the appointment of a judge for the purpose of delivering outstanding judgments

thereby avoiding litigation de novo along with all the attendant consequences of such fresh

litigation. The court therefore finds that the provisions of Section 104(2)(d)(i) are wide

enough to include the circumstance whereby the Chief Justice advises His Excellency that

the state of the High Court (in this case, the existence of a number of outstanding

judgments on the part of one particular judge which should have long been delivered and to

which the litigants are entitled, and the fact that judge has resigned) requires that a particular

judge be appointed to act so as to deliver his outstanding judgments. Certainly to do

otherwise would be to deprive the litigants of their entitlement to judgment.

60. It also therefore appears to this court that the submission of functus officio and want of

jurisdiction made by the Claimant cannot succeed so long as the Constitution provides a

due process for the judge who conducted the case to be appointed to deliver judgment. In

such a case and akin to the provisions in other jurisdictions set out above, the judge would

not be functus officio in relation to the matters in which he has not delivered judgment but

only in relation to those in which he has completed all of his judicial functions including the

delivery of judgment. Such a judge would therefore have jurisdiction to deliver outstanding

judgment. Likewise, in this case, it is the finding of the court that Justice Myers did not

discharge all his legal functions in the Claimant’s litigation by his date of resignation and

therefore was not functus officio in relation to that litigation. Once appointed to act by

virtue of the Constitution he was empowered to deliver judgment and thereby complete his

functions in relation to the case for the Claimant and he would therefore have had

jurisdiction to deliver judgment. Only upon the delivery of judgment would he have

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become functus officio in relation to that case. When viewed from that perspective, the

functus officio argument presented by the Claimant becomes somewhat of an artificial

demarcating line between appointments the imposition of which is wholly inconsistent with

the purpose of the powers set out at section 104 of the Constitution. As a consequence the

court finds that Justice Myers did in fact have jurisdiction to deliver his outstanding

judgment on the 27th

July 2011.

61. In such a case legislation which provides for the person to sit and deliver judgment would

be unnecessary as the person will be appointed to act in order to deliver judgment thereby

achieving the same purpose of the provisions in other jurisdictions which make provision

for the person to sit and deliver outstanding judgments. In so saying, it appears to this court

that the relevant legislation which usually allows for a person to sit for the purpose of

delivery of judgment in other jurisdictions does not preserve and extend the sacred bond

created by the taking of the oath upon assumption of the office of judge. In those cases, the

office of the judge is vacated so that the oath ceases to apply. In that sense it appears that

the applicable provisions in this jurisdiction offer more protection to the litigants than the

provisions which permit the person to sit and deliver judgment. In this jurisdiction, the

Judge is bound by the Judge’s oath when he delivers judgment. Not only is this in keeping

with the constitutional requirement of s.107 but it appears to this court, that is also a

recognition by the legislature that in order to deliver outstanding judgments, the court must

be lawfully constituted.

Expressio unius est exclusio alterius

62. The Claimant has submitted that because section 136(2) of the Constitution specifically

provides for continuity in office of judges who have attained the age of retirement for the

purpose of delivery of judgment or to enable them to do any other thing in relation to

proceedings that were commenced before them before they would have attained the said

age, by application of the principle of expressio unius est exclusio alterius, section 104

ought not to be interpreted as permitting the re-appointment of a judge to deliver judgment.

The JLSC has submitted that the principle ought not to be applied as to do so would be to

do injustice and further, that the principle must give way to the overriding need to interpret

section 104 to give effect to the fundamental rights and freedoms.

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63. In this regard the court agrees firstly with the submission of the Attorney General that it is

inconceivable that prior to the enactment of the Constitution, no judgments had been given

by judges who had prior to the giving of the judgments retired or resigned. That it is

improbable that the Constitution was enacted to preclude that possibility. Further, that it

does not appear that anyone considered it to have that effect given the practice that has

continued of judgments being given post retirement or resignation. This is quite a

reasonable conclusion to draw. As stated above, the 1962 Constitution expressed in similar

terms to the present constitution the extension of office for retired judges without recourse

to a provision in respect of judges who had resigned. Nevertheless the 1976 Constitution

likewise does not expressly provide for provisions for the delivery of outstanding judgments

by judges who have since resigned. It may well be that it was thought unnecessary having

regard to the wide ambit of the powers of appointment given in the 1976 Constitution. In

those circumstances the court agrees with the submission of the JLSC that to apply the

maxim may be to do an injustice to those persons who are entitled to judgment in relation

to their cases which have already been heard. This coupled with the overriding need to

interpret section 104 to give effect to fundamental rights and freedoms are strong reasons in

the court’s view as to why this principle should not be applied in this case. See Colquhorn v

Brooks (1888) 21 Q.B.D 52, Lord Justice Lopes at page 65;

“The maxim….is often a valuable servant, but a dangerous master to follow in the

construction of statutes or documents. The exclusio is often the result of inadvertence

or accident and the maxim ought not to be applied, when its application, having regard

to the subject matter to which it is to be applied, leads to inconsistency or injustice.”

64. Additionally, the court is cognizant of and takes the approach advocated in Minister of

Home Affairs v Fisher (1979) 3 All ER 21, by Lord Wilberforce at page 26 letters a to e in

discussing the interpretation to be given to the word “child” in the Bermudan Constitution;

“When therefore it becomes necessary to interpret 'the subsequent provisions of' Chapter I

(in this case s 11) the question must inevitably be asked whether the appellants' premise,

fundamental to their argument, that these provisions are to be construed in the manner and

according to the rules which apply to Acts of Parliament, is sound. In their Lordships' view

there are two possible answers to this. The first would be to say that, recognising the status

of the Constitution as, in effect, an Act of Parliament, there is room for interpreting it with

Page 27 of 36

less rigidity, and greater generosity, than other Acts, such as those which are concerned with

property, or succession, or citizenship. On the particular question this would require the

court to accept as a starting point the general presumption that 'child' means 'legitimate

child' but to recognise that this presumption may be more easily displaced. The second

would be more radical: it would be to treat a constitutional instrument such as this as sui

generis, calling for principles of interpretation of its own, suitable to its character as already

described, without necessary acceptance of all the presumptions that are relevant to

legislation of private law.

It is possible that, as regards the question now for decision, either method would lead to the

same result. But their Lordships prefer the second. This is in no way to say that there are

no rules of law which should apply to the interpretation of a constitution. A constitution is a

legal instrument giving rise, amongst other things, to individual rights capable of

enforcement in a court of law. Respect must be paid to the language which has been used

and to the traditions and usages which have given meaning to that language. It is quite

consistent with this, and with the recognition that rules of interpretation may apply, to take

as a point of departure for the process of interpretation a recognition of the character and

origin of the instrument, and to be guided by the principle of giving full recognition and

effect to those fundamental rights and freedoms with a statement of which the Constitution

commences.”

In this case therefore the overriding need to interpret section 104 to give effect to

fundamental rights and freedoms (the entitlement of the litigant to delivery of his judgment)

is a strong reason in the court’s view as to why this principle should not be applied in this

case.

Section 4(a) and 4(b) rights-Enjoyment of Property and Protection of the law

65. By virtue of section 4(a), a person is entitled to the enjoyment of his property. Protection of

the law means “that persons are entitled to have recourse to the appropriate court or

tribunal prescribed by law for the purpose of enforcing or defending their rights against

others or resolving disputes of one kind or another. It is axiomatic that such a right is

meaningless without a decision by the court or tribunal to which the claim or dispute is

referred for adjudication”: Jerome Boodhoo; Khemkaran Jagram v The Attorney General

of Trinidad and Tobago C.A.Civ.102/1999 and approved by the Privy Council on appeal

in Boodhoo (Jerome) and Khemkaran Jagram v Attorney-General (2004) 64 WIR 370.

Page 28 of 36

66. The right to enjoyment of property is circumscribed by the principle of due process of law.

That is, the individual is entitled to the enjoyment of his property except where a

deprivation of the said entitlement occurs with reference to those fundamental principles

which are necessary for a fair system of justice: The system of justice need not be perfect

but fair. See The State v Boyce (Brad) (2006) 68 WIR 437. The dicta of Lord Hoffmann in

the Boyce case reading from paragraph 11 is instructive in this regard;

"11. Jones JA proceeded to examine the law as it was at the commencement

of the Constitution and found that it included an absolute right not to be tried

for the same offence after a verdict of acquittal by a jury:

"Prior to the enactment of the new provisions an accused person who had been

acquitted of a charge against him was in a position to regard his liberty as

inviolable in respect of the same matter. Indeed he had regained his full

freedom and could not be placed in further jeopardy. That was the 'due process'

which he enjoyed and … which also constituted protection of the law. That was

the legal principle that had come to be well understood in our society. Any law,

the effect of which is likely to place the citizen in further jeopardy is a law which

offends the due process clause of the Constitution. It deprives the individual of

the procedural provisions which were available to him …"

12. In essence, the reasoning of the Court of Appeal was that under the

common law rule as it existed at the time of the Constitution, a second trial of

an accused who had been acquitted by a jury would have been a denial of due

process of law. It follows that immunity from the possibility of such a trial

formed part of the right to due process which was entrenched by section 4 of

the Constitution.

13. This proposition was skillfully and persuasively deployed before the

Board by Mr. Hudson-Phillips QC but their Lordships think that it is wrong

and that it derives plausibility only from an ambiguity in the term "due process".

In one sense, to say that an accused person is entitled to due process of law

means that he is entitled to be tried according to law. In this sense, the concept

of due process incorporates observance of all the mandatory requirements of

criminal procedure, whatever they may be. If unanimity is required for a verdict

of a jury, a conviction by a majority would not be in accordance with due

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process of law. If the accused is entitled to raise a defence of alibi without any

prior notice, a conviction after the judge directed the jury to ignore such a

defence because it had not been mentioned until the accused made a statement

from the dock would not be in accordance with due process of law.

14. But "due process of law" also has a narrower constitutional meaning,

namely those fundamental principles which are necessary for a fair system of

justice. Thus it is a fundamental principle that the accused should be heard in

his own defence and be entitled to call witnesses. But that does not mean that

he should necessarily be entitled to raise an alibi defence or call alibi witnesses

without having given prior notice to the prosecution. A change in the law which

requires him to give such notice is a change in what would count as due process

of law in the broader sense. It does not however mean that he has been

deprived of his constitutional right to due process of law in the narrower sense.

Lord Millett made this point in Thomas v Baptiste [2000] 2 AC 1, 22-24, when

he said that the term "due process" in the Constitution –

"does not refer to any particular laws and is not a synonym for common law or

statute. Rather it invokes the concept of the rule of law itself and the universally

accepted standards of justice observed by civilised nations which observe the

rule of law … It does not guarantee the particular forms of legal procedure

existing when the constitution came into force; the content of the clause is not

immutably fixed at that date."

15. It is therefore not sufficient that the law at the time of the Constitution

gave one a right to be immune from further proceedings after an acquittal by a

jury. Section 4 entrenched only "fundamental human rights and freedoms" and

the question is therefore whether the old common law rule which prevented the

prosecution from appealing against an acquittal formed part of due process in its

narrower sense as a fundamental right or freedom. Their Lordships do not

think that it did."

67. See also the dicta of Dean Armorer J in Steve Ferguson v AG of Trinidad and Tobago and

the Director of Public Prosecutions CV 2012-04052 at paragraph 362 and the discussion of

the approach taken by Kangaloo JA set out therein.

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68. The due process clause thus gives constitutional protection to the concept of procedural

fairness: see Hillare v Baptiste Privy Council Appeal No. 60 of 1998. The question thus for

the court is whether there is anything particularly unfair or unjust in a constitutional

provision which enables the appointment of a judge to facilitate the delivery of outstanding

judgments after his resignation from the bench. Having regard to the findings of the court

above, it is clear that the provisions of section 104 are in no way unfair or unjust to the

litigant. In fact the position is quite the opposite. The provisions of section 104 deliver a

due process to litigants who have at least on one occasion endured the rigors of the civil

process from institution of a claim to the process of trial itself having more than likely

incurred considerable expense in most cases and having spent years awaiting trial with the

expectation and indeed entitlement that a judgment will be delivered by the presiding judge.

It is a due process which ensures that the system does not subject the litigants to a trial de

novo. It goes without saying that a new trial would mean an additional expense to the

litigant. Further, witnesses who were available at the first trial may now be unavailable with

the result that the litigant is now deprived of potent evidence in support of their case or

against the case for the opposing party. A new trial may add substantial delay to the date of

the delivery of judgment having regard to the court’s schedule. By extension a new trial may

ultimately result in the rescheduling of other matters on the Judge’s docket so as to give

some priority to the new trial having regard to the time the claim may have already spent

within the system. It means that litigants in other matters will be affected by the

rescheduling of their matters. The domino effect of the rescheduling of trials is well known

to courts. In that regard it may also be the case that the litigants in the new trial would in

any event have to await an available trial date from the docketed judge who would have to

consider several factors and competing interests in making a determination as to a date for

trial. In the court’s respectful view therefore, it cannot be reasonably argued that the

process prescribed in the Constitution deprives the Claimant of her right to enjoyment of

property.

69. In relation to the section 4(b) right, it similarly cannot be said that the appointment of a

judge to deliver outstanding judgment in the Claimant’s case deprived her of the right to

protection of the law. As stated by The Honourable Chief Justice M. De la Bastide when

treating with the issue of the applicability of section 4(b) to the circumstances of delay in

giving judgment, at pages 10 to 11 of the judgment of the Court of Appeal which has been

approved by their Lordships of the Privy Council in the case of Boodhoo and Another v

Attorney General of Trinidad and Tobago (2004) 1 WLR 1689 at page 1693,

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“"It seems to me that this is the right that can most appropriately be invoked by persons

who complain of delay by a court in delivering judgment or for that matter failure to deliver

judgment. Surely, if the protection of the law means anything, it must mean that persons are

entitled to have recourse to the appropriate court or tribunal prescribed by law for the

purpose of enforcing or defending their rights against others or resolving disputes of one

kind or another. It is axiomatic that such a right is meaningless without a decision by the

court or tribunal to which the claim or dispute is referred for adjudication. In my view the

right to a decision by the court or tribunal to which a claim has properly been referred, is

one of the manifestations of the right to the protection of the law which is not expressly

mentioned in section 5 of the Constitution. Since this right sits so comfortably within the

ambit of the right to the protection of the law, it is unnecessary, I suggest, to strive to force it

artificially into one of the other rights by straining the language in which they are expressed."

70. So that the Claimant’s entitlement to the delivery of judgment by the judge who presided

over her case falls squarely within her fundamental right to protection of the law. In fact,

should there have been no provision for such an appointment as was made in the

circumstances of this case, the Claimant would have had to endure have a trial de novo. In

those circumstances the Claimant would no doubt have been entitled to mount a very

strong argument that the relevant provisions of the Constitution would have deprived her of

judgment and therefore the right to protection of the law. The circumstances here are the

exact opposite. The relevant provisions of section 104 of the Constitution in this case have

in fact secured her right to protection of the law by conferring a power to appoint the judge

who would have been tasked with the adjudication of her claim for the purpose of delivery

of judgment.

The de facto officer doctrine

71. The gravamen of the Claimant’s case is in fact a challenge to the jurisdiction of Justice

Myers to deliberate and deliver judgment in her case. (See submissions of the Claimant set

out at paragraph 20 above). It is therefore an indirect challenge to his appointment for that

purpose. In this case there was a valid instrument of appointment in relation to Justice

Myers’ appointment to act in the office of Puisne Judge but despite this, and perhaps

because of this, the Claimant’s challenge, disguised as it is, appears also to be an attempt to

challenge that appointment having been made for the specific purpose of delivery of the

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outstanding judgment. In other words if the Claimant is saying that there was no jurisdiction

vested in Justice Myers to deliver judgment in the Claimant’s case then the Claimant is

challenging not only the validity of the acts done by Justice Myers pursuant to that

appointment but the basis upon which that appointment was made. It is in this way that it

appears to the court to be an indirect challenge to the appointment.

72. The de facto officer doctrine confers validity upon acts performed by a person acting under

the colour of official title even though it is later discovered that the legality of that person's

appointment or election to office is deficient. See Fawdry & Co (a firm) v Murfitt (Lord

Chancellor intervening) [2003] 4 All ER 60; Coppard v Customs and Excise

Commissioners [2003] 3 All ER 351; and Baldock vWebster [2005] 3 All ER 655.

73. The principle was applied in the case of R v Myers (2009) 76 WIR 163 by the Court of

Appeal of Belize. The appellant was convicted of murder and two counts of wounding,

following trial before judge and jury. He appealed against conviction on the ground that the

trial had been a nullity as the trial judge had been over the age of 65, the age set out in the

Constitution for judges to demit office, when he had presided over the trial and,

consequently, that the appellant had been deprived of his liberty in violation of sections 4,

5, 6(2), 97 and 98(1) of the Constitution. Section 98(1) of the Constitution of Belize

provided:

‘Subject to the following provisions of this section, a justice of the Supreme Court shall

hold office until he attains the age of sixty five years.’

The proviso to s 98(1) enabled the Governor General, acting in accordance with the advice

of the Judicial and Legal Services Commission and the concurrence of the Prime Minister

who had first to consult the Leader of the Opposition, to permit a person who had attained

the age of 65, to continue until he attained an age not exceeding the age of 75. It was

accepted that the judge, who had been appointed with effect from 1 April 1993, had

attained the age of 65 years on 28 December 2006. It was also agreed that on attaining the

age of 65, the Constitution mandated that he must retire. However, the judge had not in

fact retired, but continued to sit and preside over trials including the appellant’s. Since he

had attained the age of 65, the judge had presided over some 38 cases during the period 28

December 2006 and 28 December 2007.

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74. Sections 4, 5, 98(1) of the Constitution of Belize set out certain guaranteed rights including

the right to a fair hearing within a reasonable time by an independent and impartial court

established by law. Counsel argued that these sections taken together provide that an

accused who is charged with murder shall not be deprived of his life or liberty except in the

manner provided in these sections. Counsel further submitted that these sections require

that a sentence which a court passes on an individual which deprives him of his liberty can

only be imposed after a fair trial in a court of law which is independent and impartial and as

such has been established in accordance with the Constitution. He urged that, in order to

fulfil this requirement, the judge who presided over the trial must have been competent to

preside at such a trial. Having passed the age at which he should have demitted office, it

meant that he continued in office in breach of the Constitution and that such continuation

in office was illegal and therefore he was incompetent to preside over the trial. The result of

this was that the appellant was deprived of his liberty in breach of a right guaranteed to him

by the Constitution.

75. The Court of Appeal of Belize therefore considered whether to and did apply the de facto

officer doctrine. The court found that for the de facto doctrine to apply, the judge must

have a colourable title or authority. In addition, the judge must have acted in good faith and

must have been believed that he had the necessary authority to act and has been treated by

litigants as having such authority. The doctrine cannot be invoked by a person who knows

that he has no authority to sit as a judge but none the less usurps the function of a judge.

The rationale for the de facto doctrine is that the logic of annulling the decision of the de

facto judge must yield to the need to protect the reputation of the law and the public

confidence in it as well as the interest of the parties who acted on the assumption that the

trial was being properly conducted.

76. While, the facts of the Myers case can be distinguished from this case, the doctrine and the

principle may be applicable to the circumstances of the present case. In that regard the

court notes that there is no evidence to show that at the time of the trial the appellant

questioned the competency of the judge to preside over the trial. All the parties apparently

proceeded on the basis that the judge was qualified to preside and deliver his outstanding

judgment. Further, by the time of delivery of the judgment in 2011, the Claimant had

already filed these proceedings having done so in 2010. The Fixed Date Claim Form and

affidavit filed in support all clearly show that all the relief sought at that time related to the

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sole issue of the delay by Justice Myers in delivering judgment. There was no issue made

and no relief sought in relation to his jurisdiction to sit and deliver judgment. It means that

at the time judgment was delivered, the Claimant had accepted that Justice Myers had

jurisdiction to sit and deliver judgment in her case. This is also evident by the several letters

which were sent on her behalf asking that judgment be delivered. Almost one year later, she

amended her originating process raising the issue of jurisdiction in its present form for the

first time. Nothing prevented the Claimant from taking the point before Justice Myers on

the day that he was to deliver judgment and no reason is provided for not so doing.

77. So that the court wishes to make it clear that even if this court is wrong in its interpretation

of section 104 of the Constitution, and the challenge of the Claimant does in fact amount to

a challenge to the appointment of Justice Myers, (which the Claimant has apparently set out

as her primary submission at paragraph 13 of her submissions in reply dated the 26th March

2014), the court would have applied the doctrine in this case. In that regard, the court has

found that the Claimant did in fact accept that Justice Myers had jurisdiction to deliver

judgment on the 27th

July 2011. Further, that Justice Myers did have a colourable title or

authority. In addition, the court finds that he must have acted in good faith and must have

believed that he had the necessary authority to deliver his outstanding judgment and was

treated by the litigants as having such authority. See also Whitfield v AG (1990) 44 WIR 1

judgement of Gonsalves-Sabola J for the application of the doctrine.

ALTERNATIVE REMEDIES

78. The JLSC submits that the right of an appeal of the Judgment of Justice Myers was available

to the Claimant and they rely on Independent Publishing Co. Ltd v Attorney General

(2005) 1 AC 190 at paragraph 87-88 in support of their submission that the Claimant being

entitled to a legal system that is fair, the right to appeal was available but not pursued. The

Claimant submits that the complaint made in this claim goes to the root of the jurisdiction

of Justice Myers to deliver judgment and so an appeal of the judgment itself would not have

and could not have treated with such a fundamental issue. Suffice it to say that the short

answer on this issue is that had the Claimant taken the point of want of jurisdiction before

Justice Myers at the time he sought to deliver judgment then the Claimant would have been

able to take the point as to jurisdiction before the court of appeal on the hearing of the

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substantive appeal. It may well have also been the case that having failed to take the point at

the High Court, the Claimant may still have been granted an audience in respect of the

point on the hearing of the substantive appeal. But the evidence shows that no appeal was

filed.

79. The JLSC has also submitted that by virtue of the terms of section 104, the appointment of

Justice Myers involved three separate decisions, namely a decision of the Chief Justice that

the state of business of the High Court required the appointment of someone to act in the

office of Puisne Judge and to advise His Excellency accordingly, a decision by the JLSC to

appoint Justice Myers so to act and to advise His Excellency accordingly and finally a

decision by His Excellency to appoint Justice Myers. In this regard the JLSC has submitted

that the Claimant has not challenged the first two decisions which they submit ought to have

been done by way of Judicial Review Proceedings. The Claimant has replied that they were

entitled nonetheless to challenge the jurisdiction to make such an appointment by way of

Constitutional claim wherein they would still be entitled to a declaration under section 14

that the decision to appoint Justice Myers was unlawful. The Court agrees that a challenge

by way of Judicial Review would have been available to the Claimant in respect of the

decisions of the Chief Justice and the JLSC (see Nizam Mohammed v The Attorney

General of Trinidad and Tobago CV2011-04918) but agrees with the Claimant that a

challenge was equally applicable by virtue of and under the provisions of the constitution.

80. However to borrow, with advance apologies, the words of Lord Cooke of Thorndon from

the judgment of Their Lordships of the Privy Council in Observer Publications Limited v

Campbell and Others, PC Appeal No. 3 of 2000, at paragraph 53, suitably adapted, this

court would add as follows;

The image of the Constitution as secluded behind closed doors is not one to be adopted.

Nor would it be right to think of the Constitution as if it were aloof or a brooding

omnipresence in the sky. On the contrary human rights guaranteed in the Constitution of

Trinidad and Tobago are intended to be a major influence upon the practical

administration of the law. Their enforcement cannot be reserved for cases in which it is not

arguable that an alternative remedy available. Bona Fide resorts to rights under the

Constitution ought not to be discouraged. Frivolous, vexatious or contrived invocations of

the facility of constitutional redress are certainly to be repelled. The right to enjoyment of

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property and the right to protection of the law are at the heart of this case. In those

circumstances the litigant ought not to be shut out of court because of the availability of

alternative remedies and so the court has declined the invitation to dismiss the claim on that

basis.

81. For the other reasons stated herein however, I would dismiss the claim and order that the

Claimant do pay to the Defendant and the Interested Parties the costs of the claim to be

assessed in default of agreement.

Dated this 4th

day of November 2014

Ricky Rahim

Judge