republic of trinidad and tobago in the court of...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

(CHAMBER COURT)

CIVIL APPEAL NO. S 192 OF 2016

CV NO. 03229 OF 2015

BETWEEN

THE ATTORNEY GENERAL

OF TRINIDAD AND TOBAGO

Appellant

AND

RYAN RENO MAHABIR

Respondent

BEFORE THE HONOURABLE MADAM JUSTICE JUDITH JONES, J.A.

APPEARANCES:

Mr. F. Hosein, S.C., Ms. S. Sukhram, Ms. R. Hinds, Ms. R. Theophilus and Ms. T.

Toolsie instructed by Ms. K. Matthew and Ms. L. Thomas for the Appellant.

Mr. A. Ramlogan, S.C., Mr. G. Ramdeen and Mr. A. Pariagsingh instructed by

Mr. K. Samlal for the Respondent.

RULING

1. By a fixed date claim filed in the High Court Ryan Reno Mahabir, the

Respondent herein, sought:

(A) A determination of the High Court on the question of

whether section 5(5)(b) (ii) of the Bail Act as amended by the

Bail (Amendment) Act No 7 of 2015 should be correctly read

and interpreted so that the word “unlawful” qualifies the

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possession of a firearm by the Applicant for bail or someone

who was involved in the commission of the offence;

(B) A declaration that the correct interpretation of section 5

(5)(b)(ii) of the Bail Act is that the word “unlawful” is

required to qualify possession of the firearm by the applicant

for bail or a person that was involved in the commission of

the offence;

(C) Costs

(D) All necessary and consequential orders and directions and such

further and/or other relief as the Court might consider necessary

or expedient or as the Court deems fit.

2. After hearing submissions by both sides the order of the trial judge was as

follows:

“The Court interprets Section Five (5) of the Bail Amendment

Act and modifies same to read:

“(5) Subject to subsections two (2), six (6) and seven (7),

a Court shall not grant bail to a person who-

(a) …

(b) On or after the commencement of the Bail

(Amendment) Act 2015, is charged with an

offence:

(iii) Specified in Part II of the First Schedule, except an

offence under Section Six (6) of the Firearms Act, where the

prosecution informs the Court that the person or any other

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person involved in the commission of the offence had in his

possession and used a firearm or imitation firearm during the

commission of the offence”.

IT IS ORDERED THAT:

1. The Defendant shall pay sixty (60%) percent of the

Claimant’s cost on the substantive claim fit for Senior

Counsel and one (1) Junior and Instructing Attorney.

On the application for the admission into evidence of

the Cabinet Note, the Defendant shall pay the

Claimant’s costs of the application fit for Senior

Counsel.

2. Costs are to be assessed in default of agreement.

3. There be a stay of execution of fourteen (14) days.”

3. The modification to the section applied by the judge was with respect to the

words underlined in the order. The effect of the modification was to narrow the

circumstances under which bail may be denied under the section. In other words

the interpretation adopted by the judge allowed a larger number of persons to

be eligible to apply for bail than would have been eligible had the interpretation

proffered by the Attorney General, the Appellant herein and which the

Appellant submitted was the natural and ordinary meaning, been preferred.

4. The stay of execution granted by the judge expired on 3rd June 2016. On 17th

June 2016 the Appellant appealed the decision and, by an application filed on

21st June 2016, seeks before me: (a) a stay of execution of the judgment and

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orders of the trial judge pending the hearing and determination of the appeal

and (b) an expedited hearing of the appeal. At the time of making the application

and up to the time of the submissions before me the order of the judge had not

yet been perfected. The order has now been perfected.

5. The Appellant submits that the appeal is urgent and a stay of execution ought to

be granted. According to the appellant the interpretation placed on the section

by the judge has serious implications for the administration of justice since:

(a) persons currently deprived of bail will now be able to make

applications to the Magistrate’s court to determine whether

they fall within the provision as read by the judge and there

may be an inundation of claims to the High Court for

constitutional relief by those deprived of bail prior to the

judgment. This, he submits, will place a significant strain

on the criminal and civil justice system;

(b) if the judge’s interpretation is applied in the interim but is

subsequently found to be incorrect by the Court of Appeal

it is likely to bring the administration of justice into

disrepute and result in serious detriment to good public

administration;

(c) a stay of the decision and an early hearing of the appeal is

critical as the sunset clause on the Bail (Amendment) Act

is set to expire on the 15th August 2016. There is therefore

still time for the provision as enacted to run. Should a stay

not be granted and the appeal not expedited the matter will

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be considered by the Court of Appeal long after the

provision ceases to be effective;

(d) if the decision is not stayed and the appeal expedited the

manner in which the provision has been read by the judge

will influence the bail legislation currently before the

Parliament and any provision that mirrors the section will

have to be construed in accordance with the interpretation

placed on the section by the judge;

(e) the interpretation of the section has an impact on two

constitutional claims now before the court. It is therefore

important to establish the precise provision upon which the

courts are being called upon to pronounce.

6. Insofar as the Appellant refers to the sunset clause in the Bail (Amendment)

Act, prior to the Bail (Amendment) Act No 7 of 2015, from the year 2008

section 5 of the Bail Act Chap.4:60 had been the subject of various amendments.

The version of section 5, and in particular section 5(5)(b)(ii), considered by the

judge was introduced into the Bail Act by the Bail (Amendment) Act No 7 of

2015 (“the Amending Act”). Section 5 of the Amending Act provides for it to

expire on the 15th August 2016. Subsequent to the filing of the appeal and this

application, on 1st July 2016, a bill which, among other things, sought to extend

the life of the section as amended was defeated in Parliament. There is therefore

no bail legislation currently before Parliament. The appeal concerns a section

of the Bail Act that will no longer be law after the 15th August 2016.

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7. The position is that from 16th August 2016 section 5 of the Bail Act Chap.4:60

will provide:

“5. (1) Subject to subsection (2) a Court may grant bail to any

person charged with any offence other than an offence listed

in Part 1 of the First Schedule.

(2) A Court shall not grant bail to a person who is

charged with an offence listed in Part II of the First

Schedule and has been convicted on three occasions

arising out of separate transactions-

(a) of any offence; or

(b) of any combination of offences,

listed in that Part, unless on application to a Judge he can

show sufficient cause why his remand in custody is not

justified.

(3) In calculating the three prior convictions referred to in

subsection (2), only those convictions recorded within

the last ten years shall be taken in account.”

This original section therefore further widens the category of persons eligible to apply

for bail.

Stay of Execution

8. It is now trite law that to obtain a stay of execution pending appeal an applicant

must satisfy the judge that the appeal has a good prospect of success and that

there are special circumstances that would justify exceptionally the grant of a

stay: National Stadium (Grenada) Ltd v NH International (Caribbean)

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Limited and others Civil Appeal No. 48 of 2011. Of course one of the

accepted special circumstances being, if paid, there would be no reasonable

prospect of getting the money paid pursuant to the judgment back in the event

of a successful appeal. As was said in the NH International case the essential

factor for the Court’s consideration in the exercise of its discretion is the risk of

injustice.

9. The Appellant submits that there is a good prospect of success of the appeal and

refers to the notice of appeal which identifies some 14 grounds of appeal one of

which deals with the judge’s order for costs. With respect to the special

circumstances the Appellant refers to the irreversible effect on the

administration of justice and relies on the matters referred to above. In addition

he submits that should the costs be paid there is no reasonable prospect of being

able to recover these costs should he be successful on the appeal.

10. The Respondent, on the other hand, submits that I have no jurisdiction to order

a stay of the execution of the judgment. Alternatively, he submits, the

application is devoid of any evidence in support of the submissions as to the

impact and repercussions of the decision and there is no good prospect of

success of the appeal.

11. By section 37 of the Supreme Court of Judicature Act Chap.4:01 the jurisdiction

of the Court of Appeal in so far as it concerns the practice and procedure to be

followed in relation to appeals from the High Court is to be exercised in

accordance with that Act and the Rules of Court. Part 64.18 of the Civil

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Proceedings Rules 1998 as amended (“the CPR”) identifies the jurisdiction of a

single judge of appeal.

12. Part 64.18 (1):

“ (1) A single judge may make orders for-

(a) the giving of security for any costs occasioned by

an appeal;

(b) a stay of execution on any judgment or order against

which an appeal has been made pending the

determination of the appeal; and

(c) an injunction restraining any party from disposing

of or parting with the possession of the subject

matter of an appeal pending the determination of the

appeal,

and may hear and determine any procedural application in the

course of the appeal.”

13. The rule therefore gives limited powers to a single judge of appeal. This

includes the power to make an order to stay the execution of any judgment or

order against which an appeal has been made pending the determination of the

appeal.

14. According to the Respondent a stay of execution does not arise where the

judgment is declaratory and only arises where there is an executory order, that

is, an order that requires something to be done. In support of this point he relies

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on an excerpt from Zamir and Woolf: The Declaratory Judgment and two

cases, a decision of the Court of Appeal of Belize, The Attorney General and

others v Prosser and others Civil Appeal No.7 of 2006 and, a decision of the

Supreme Court of Nigeria, Chief R. A. Okoya and others v S. Santilli and

others SC200/1989. In both of these cases the court was of the view that the

consensus among academic writers was that declaratory judgments merely

proclaim the existence of a legal relationship and do not contain any order that

may be enforced against the defendant. In both cases the court refused to order

a stay of execution of declarations made in the order upon appeal.

15. In this regard in The Attorney General and Ors v Prosser and Ors at page

23 Sosa JA quotes from the judgment of Agadje J. in Oksya v Santilli as

follows:

“ it appears to me that the starting point…is the consensus that

a declaratory judgment may be the ground of subsequent

proceedings in which the right …violated receives enforcement

but in the meantime there is no enforcement or any claim to it.

So, until subsequent proceedings have been taken on a

declaratory judgment following its violation or threatened

violation there cannot on the clear authorities I have referred to

above, [be] a stay of execution of the declaratory judgment

because prior to the subsequent proceedings, it merely

proclaims the existence of a legal relationship and does not

contain any order which may be enforced against the

defendant.”

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16. Except to suggest that this court has, in two appeals before it, made orders that

impose a stay of execution in similar circumstances the Appellant has not

challenged the principle of law expressed in the two cases. The Appellant

submits however that, in the absence of the actual order made by the judge, it is

impossible to determine whether a declaration was in fact made by the judge.

He suggests that the judgment is more in the nature of a guideline judgment.

17. It is perhaps appropriate here to deal with the two appeals referred to by the

Appellant. In my view neither of them are of any assistance. In Nabbie and

Mayers v the Law Association of Trinidad and Tobago and the Attorney

General CA No 72 of 2012 the order obtained by the appellants was an

injunction. In that case the Law Association had sought a determination by the

High Court of two questions one of which was whether Law Officers, as defined

by the Legal Profession Act Chap 90:03, were entitled to attend and vote at a

general meeting or at elections of the Association or be elected to the Council

of the Law Association without paying fees under the Act.

18. The trial judge determined that they were not so entitled. The appellants, Nabbie

and Mayers, appealed the decision and before the Court of Appeal Chambers

sought an injunction restraining the Law Association from holding elections

until the determination of the appeal. The Chamber Court judge granted the

injunction sought. No application for a stay of the judgment under appeal was

sought or obtained.

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19. In The DPP v Her Worship Lucena Cardenas- Ragoonanan Civil Appeal

P073 of 2016 the appellant, the DPP, had, by way of judicial review, sought to

review a decision of the magistrate and, by way of interim relief, sought a stay

of the magistrate’s order pending the determination of the judicial review

application. Leave to apply for judicial review of the decision was granted ex

parte but subsequently set aside. The appellant appealed the decision to set aside

the leave and applied for a stay of that decision. A stay of the decision to set

aside leave was ordered by consent. In neither case therefore were there stays

of execution granted with respect to declaratory judgments.

20. In the text, The Declaratory Judgment1, Zamir and Woolf make a distinction

between a declaratory judgment and an executory judgment:

“A declaratory judgment is a formal statement by a court

pronouncing upon the existence or non- existence of a legal

state of affairs. It is to be contrasted with an executory, in other

words coercive, judgment which can be enforced by the courts.

In the case of an executory judgment, the courts determine the

respective rights of the parties and then order the defendant to

act in a certain way, for example, by an order to pay damages

or to refrain from interfering with the claimant’s rights; if the

order is disregarded, it can be enforced by official action,

usually by levying execution against the defendant's property

or by imprisoning him for contempt of court. A declaratory

1 Zamir v Woolf: The Declaratory Judgment, third edition, paragraph 1.02 at page 1.

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judgment, the other hand, pronounces upon a legal relationship

but does not contain any order which can be enforced against

the defendant. Thus the court may, for example, declare that the

claimant is the owner of certain property, that he is a British

subject, that a contract to which he is a party has or has not been

determined, or that a notice served upon him by a public body

is invalid and of no effect. In other words, the declarations

simply pronounce on what is the position.”

21. With respect to guideline judgments and their relationship to declaratory

judgments Zamir and Woolf state:

“Declaratory judgments have also to be distinguished from

guideline judgments. Any judgment by a court of record in a

common law system can clarify and develop the law. It is no

longer necessary to conceal the fact that judges make law by

declaring what the law is in the course of their judgments,

which then provide precedents for the future. This is done

without making a declaratory judgment of the nature with

which this book is primarily concerned, which is a judgment

which concludes by making a formal declaratory order.

However, in recent years it has become increasingly frequent

for appellate courts to not only decide the issue which is

strictly before the court but also to as to what should be a

position in similar situations in the future. Broad guidance is

given as to levels of sentencing, questions of damages and as

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the issue of practice, procedure and costs. The guidelines are

in practice given effect to in other cases. Although not strictly

binding, judgments are accepted as being declaratory of the

legal position and followed by inferior courts until changed.

They are therefore highly influential but not declaratory.”2:

22. Insofar as the trial judge’s order determines how the section is to be read I do

not accept that the decision of the judge was a guideline decision as described

by Zamir and Woolf. Although the word ‘declare’ or variations of it is not found

in the order, or indeed the judgment, the application before her specifically

sought a determination as to how the section should be interpreted and read. In

doing so the judge was in fact declaring what the law was. This was the primary

purpose of the application. This was not broad guidance given in the course of

a judgment but in fact a formal statement by the judge as to the interpretation to

be placed on the section. I am satisfied that in the circumstances the judge’s

determination of the issue before the court was declaratory of the law and a

declaratory judgment in the context used by Zamir and Woolf despite the fact

that the word ‘declare’ was not used.

23. In so far as it is necessary to classify the nature of the order, that is, whether it

is declaratory or executory it is in fact both. In so far as it declares the manner

in which the section is to be read and modified it is declaratory of the law. In so

far as it orders the payment of costs, the manner in which the costs were to be

ascertained and a stay of execution it is executory.

2 Ibid paragraph 1.04 page 3

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24. In both of the cases referred to by the Respondent the court was of the opinion

that there could be no execution of a declaratory judgment. Although both of

the cases are merely persuasive authority I accept the reasoning of the courts on

this point. It is clear to me that in the absence of an order for something to be

done, or executed, there is no execution to be stayed.

25. A similar position was taken by the Eastern Caribbean Court of Appeal in the

case of Cukurova Finance International Limited and another v Alfa

Telecom Turkey Limited [2011] ECSCJ No 257. Here the appellants sought

before the full court a stay of execution of a judgment containing declarations

and orders pending an appeal to the Privy Council. While a stay of execution

was granted with respect to the orders made the Court declined to grant a stay

of execution of the declarations.

26. In agreeing with the submissions made by the respondent in that case, at

paragraph 32, Edwards JA stated:

“…….a declaratory judgment cannot be stayed. It is

elementary that a declaratory judgment merely proclaims the

existence of a legal relationship and does not contain any

order which may be enforced against Culurova. While the

declaratory judgment may be the ground of subsequent

proceedings in which the right, having been violated, receives

enforcement, in the meantime there is no enforcement or any

claim to it. The Court of Appeal made no determination of the

rights of the parties requiring enforcement by making the

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declarations sought by Alfa so Cukrova’s application in

relation to the declarations made by the Court of Appeal must

be refused”.

27. In like manner that part of the order of the trial judge by which she determined

the correct reading of the section does not contain any order that may be

enforced against the Rrespondent. It merely declares the manner in which the

section is to be interpreted and read. In these circumstances I am satisfied that

there can be no stay of execution of that part of the order.

28. With respect to the order for costs however while a stay of execution is available

the order of the judge was that if not agreed the costs were to be assessed. From

the bar table I have been told that there has been no attempt to assess the costs.

It would seem to me that in the circumstances an application to stay the

execution of the order for costs is premature. In any event the Appellant has not

placed any evidence before me in support of his submission that if paid it is

likely that the Respondent will be unable to repay the costs if the Appellant is

successful on the appeal. In the circumstances I decline to make an order staying

the judge’s order for costs.

Expedited appeal

29. Part 64.10 of the CPR permits the court to make an order that the hearing of an

appeal be expedited on the application of any party to the appeal. In this case

both parties are agreed that the appeal ought to be expedited. Such an agreement

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however is not determinative of the application. The question for me is whether

this appeal ought to be given priority over the other appeals filed before it.

30. The principles relevant to expediting an appeal were considered by our Court

of Appeal in the case of Trinidad and Tobago Civil Rights Association v

Patrick Augustus Manning Civil Appeal No 147 of 2004. This was an

application for judicial review and concerned the grant of lands to displaced

workers. At that time the relevant rule, Order 59 rule 41 of the Rules of the

Supreme Court 1975, required the applicant to satisfy the court that it was in the

interest of justice that the appeal be heard urgently. According to Nelson JA:

“…..in order to succeed on an application of this kind there

must be something in the nature of the cause or matter or

the relief sought or for some other reason, it must be in the

interest of justice that the appeal be heard in priority to

other appeals.”

31. Part 64.10 is not in the exact terms of Order 59 rule 41 and makes no reference

to ‘the interest of justice’. In exercising my discretion under Part 64.10 however

I am required by the CPR to apply the overriding objective. I must therefore

treat with the case justly. This is not limited to considerations of what is fair or

right as between the two parties but extends to considerations of fairness to other

users of the court’s resources3. This to my mind includes a consideration of

whether it is in the interests of justice that this appeal be heard in priority to

3 Part 1.1(2)(e)

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other appeals. There is in my view therefore no major difference in the

application of Order 59 rule 41 of the 1975 Rules and Part 64.10 of the CPR.

32. In the Trinidad and Tobago Civil Rights Association case the following

statement made by Sir Thomas Bingham, then Master of the Rolls, in Unilever

PLC v Chefaro Proprietaries Ltd [1995] 1 All ER 587 was endorsed by the

court:

“Since most appeals are scheduled to be heard on dates fixed

well in advance, and since court sittings are so far as possible

planned a long time ahead, the expediting of an appeal other

than the shortest is likely to have one or other of two possible

consequences, usually both. One is that a fixture already

made for the hearing of another appeal has to be cancelled.

The other is that the hearing of another appeal which may

well have been awaiting hearing for about 18 months, has to

be deferred. Both of these consequences are highly distasteful

both to the court and to the parties in the displaced appeal or

appeals.”4

33. In the Trinidad and Tobago Civil Rights case the stated position was that, rather

than the 18 months suggested in Unilever, the time lag between setting down

and hearing was no more than 5 months. Bearing in mind the guidelines for

4 page 8 of the Trinidad and Tobago Civil Rights Association v Manning and page 590-591 of the

Unilever case

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expedited appeals set out in Unilever the court’s position in the Trinidad and

Tobago Civil Rights case was that it ought to be:

“ …. very sparing in its grant applications for urgent hearing

especially in view of the fortunate position in which Court

of Appeal list stands. Secondly, that the court in fixing a date

for an early hearing would give weight not so much of the

wishes of the parties to that appeal, but to the interest of other

parties who would be adversely affected by the cancellation

or postponement of their appeals. One has to consider that

all persons who file appeals feel that those appeals ought to

be heard urgently. It therefore would require some

exceptional case to be made out for an urgent hearing to be

granted especially in view of the relatively short time- lag

between setting down and hearing of the appeal in this

jurisdiction.”5

34. Unfortunately times have changed and the period between the setting down and

the hearing of the appeal in this jurisdiction at this time is more in the vicinity

of the 18 months suggested in Unilever. In that case Sir Thomas Bingham,

recognizing that in the circumstances there needed to be a high threshold which

a party must cross before its application for an expedited appeal is granted, gave

an indication of the principles that the court was likely to apply when making

an order for the expedited hearing. He divided the types of cases into two

5 Ibid page 8

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categories. One of these categories was where justice can only be done if the

appeal is heard immediately or within days.

35. The other category arises in cases where:

“The court recognizes the need to try and arrange expedited

hearings where it appears that without such expedition: (1) a

party may lose its livelihood, business or home or suffer

irreparable loss or extraordinary hardship; (2) the appeal will

become futile; (3) the resolution of numerous cases turning

on the outcome of a case under appeal will be unreasonably

delayed, or the orderly management of class or multi-party

litigation in the lower court will be disrupted; (4) widespread

divergencies of practice are likely to continue, with the

prospect of multiple appeals until the correct practice is laid

down; (5) there would be serious detriment to public

administration or to the interests of members of the public not

concerned in the instant appeal.”6

36. On the evidence before me I am satisfied that this case does not fall within the

category of cases that needs to be heard within a matter of days. Indeed the

application to expedite the appeal was made approximately one month after the

decision. Rather it is to the second category of cases that consideration needs to

be given. Items (2), (3) (4) and (5) are of concern here they all having been

6 Page 591 of the Unilever case

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raised in some form or fashion by the appellant when dealing with the

implications of the judgment on the administration of justice.

37. However the concerns raised by the Appellant have to be considered in the light

of the length of the life of the section, just over two weeks, and the fact that the

application seeks to have this appeal jump the queue over all the other appeals

awaiting hearing.

38. It is not possible for the appeal to be heard before the 15th August 2016 the date

when the section ceases to have any effect. In the circumstances insofar as the

appeal is to make certain the interpretation to be placed on the existing section

for future use for all intents and purposes it is already futile. There is no bail

legislation before Parliament that the decision of the trial judge can influence.

Nor is there any evidence before me of any case the resolution of which turns

on the interpretation to be placed on the section. Or indeed of any constitutional

motions or bail applications brought as a result of the interpretation placed on

the section by the judge.

39. Both constitutional motions referred to by the Appellant predate the judgment

that is being appealed. In any event they both deal with a specific refusal of bail

made prior to the decision of the judge. Any constitutional rights which may

have been breached with respect to those persons flow from that specific refusal

and not from the decision appealed.

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40. There ought not to be a divergence of practice with respect to the application of

the section since there has now been a determination by a court of competent

jurisdiction of the manner in which the section is to be applied. In any event the

section only has two weeks left before it is no longer valid. Even if the Court of

Appeal subsequently determines that the judge was wrong, in the light of the

fact that the reversion to original section narrows even further the circumstances

under which bail may be denied, the effect of such a reversal will be negligible.

Not much will turn on the interpretation placed on a non-existent section by a

judge.

41. There is no evidence of the fear voiced by the Appellant that there will now be

an inundation of claims to the High Court for constitutional relief by those

denied bail as a result of the interpretation placed on the section by the judge.

At the end of the day these fears voiced must be viewed in the context of the

length of time the section has to run and must be weighed against the fact of the

deferment of other appeals and the resulting injustice to those parties.

42. To my mind the determining factor is the length of time left for the section to

have any effect. The reality is that in a little over two weeks the modifications

placed on the section by the judge will have no effect on the eligibility of

persons to apply for bail and will be of little more than academic interest. I am

therefore not satisfied that if the appeal is not expedited there would be serious

detriment to public administration or to the interests of members of the public

not concerned in the instant appeal.

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43. In the circumstances given the length of time left for the section to have any

validity I am of the opinion that an order for an expedited hearing is not

warranted. The Appellant has not satisfied me that it is in the interests of justice

that this appeal have priority over all the other appeals awaiting hearing.

Accordingly the application is dismissed.

Dated this 29th day of July, 2016.

J. Jones

Justice of Appeal

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