republic of trinidad and tobago in the court of …€¦ · 3. anthony phillips 4. edward williams...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Civil Appeal No. 11 of 2008

H.C.A. No. 1234 of 2004

IN THE MATTER OF THE CONSTITUTION OF

THE REPUBLIC OF TRINIDAD AND TOBAGO

(“THE CONSTITUTION”) ENACTED AS THE SCHEDULE

TO THE CONSTITUTION OF THE REPUBLIC OF

TRINIDAD AND TOBAGO ACT, CHAPTER 1:01

BETWEEN

1. MICHAEL BOXHILL

2. ROY DELANCY

3. ANTHONY PHILLIPS

4. EDWARD WILLIAMS

5. ANTHONY MC DONALD

6. PHILIP ANDREWS

Appellants

AND

THE PORT AUTHORITY OF TRINIDAD AND TOBAGO

Respondent

PANEL: A. MENDONÇA, J.A.

P. JAMADAR, J.A.

N. BEREAUX, J.A.

APPEARANCES: R. Maharaj SC and V. Maharaj for the appellants

E. Prescott SC and S. Alexander for the respondent

DATE DELIVERED: 28 February 2013

I agree with the judgment of Bereaux, J.A. and have nothing to add.

A. Mendonça

Justice of Appeal

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I too agree with the judgment of Bereaux, J.A. and have nothing to add.

P. Jamadar

Justice of Appeal

JUDGMENT

Delivered by Bereaux, J.A.

[1] This is an appeal from the decision of Aboud J in which he dismissed the

appellants’ notice of motion. The appellants are employees of the respondent,

which is the Port Authority of Trinidad and Tobago. In this appeal they allege

that the respondent has breached their right to equality of treatment by a public

authority. This right is guaranteed to them by section 4(d) of the Constitution of

Trinidad and Tobago. There were other breaches alleged by the appellants which

were also dismissed by the trial judge but these have not been pursued on appeal.

[2] The essence of the appellants’ claim is that they were denied promotion to

certain positions within the respondent’s organisation. They alleged that the

respondent in failing to take steps to promote them to the relevant positions (Daily

Paid Permanent Worker or Port Follower) acted arbitrarily and treated them

unequally.

[3] The appellants contend that the conduct of the respondent in failing to

promote them amounts to mala fides and shows a lack of good faith in its actions

towards them. They stated that its conduct was intended to hurt them, constituted

“deliberate and intentional exercise of power not in accordance with the law,

which resulted in the erosion of the appellants’ rights” and amounted to

“irresponsible and reckless action” in that the respondent did not care whether

their rights were eroded or not.

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[4] The respondent raised two preliminary issues at the trial which are still

live by virtue of its cross appeal :

(i) that the relief sought by the appellants arose in private law as opposed to

public law

(ii) that there was an effective alternative remedy available to the appellants

under the Industrial Relations Act, Chap 88:01.

These issues were raised by the respondent as part of its submission that the

action was an abuse of process. On the first preliminary issue, two subsidiary

questions arise -

(a) whether the respondent was a public authority

(b) even if it is, whether the acts complained of were public acts, sufficient to

justify an application under section 14 of the Constitution.

The respondent contended that -

(1) the respondent was not part of the executive arm of the state, or

alternatively, the powers which the appellants have sought to

impugn, cannot be construed as acts of the state and were not acts

in the exercise of the executive or prerogative powers;

(2) the appellants were not seeking to protect a public right

[5] As to the second preliminary issue, the respondent contended that the

appellants, as workers and members of a recognised majority union, the Seamen

and Waterfront Workers Trade Union, (“the Union”) were entitled to seek redress

for any dispute with the respondent over terms and conditions, under the

provisions of the Industrial Relations Act Chapter 88:01.

[6] The judge held that the respondent was a public authority. He also held

there was a public law ingredient involved in questions concerning the promotion

of workers. On the second preliminary issue he found that there was no alternative

procedure open to the appellants because they could not as workers, individually

pursue proceedings in the Industrial Court in respect of their non promotion, more

so since their trade union, through which the appellants could pursue their

grievances, had chosen not to initiate action in the Industrial Court on their behalf.

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As to the substantive issues of breach of sections 4(b) and 4(d), he found, inter

alia, no breach of these provisions and dismissed the motion.

[7] The appellants filed fifteen grounds of appeal in respect of the dismissal of

the substantive motion. The respondent cross appealed against the dismissal of

both preliminary objections. At the date of hearing of the appeal, we were

informed that all the appellants had been variously promoted to the permanent

establishment in 2007 and 2008. This was subsequently confirmed by letter from

the appellants’ attorneys. The promotions, would at best, affect only the quantum

of damages to be awarded.

Summary of decision

[8] The appeal and cross appeals must be dismissed. I find as follows :

(i) The respondent is a public authority for the purposes of section 4 and 5 of

the Constitution. The judge was correct to find that it was.

(ii) The fact that the act of a public authority may have been committed in the

course of a contract or some other private law capacity does not

necessarily preclude a litigant from bringing a successful constitutional

claim. Distinctions between public law and private law as those terms

may be used in judicial review may not always apply in proceedings under

section 14 of the Constitution. Much will turn on the nature of the act

complained of, the nature of the allegations and the facts and

circumstances of their occurrence.

(iii) The right to pursue a trade dispute before the Industrial Court in respect of

a breach of a worker’s terms and conditions is an effective alternative

remedy available to the worker. The fact that it is to be pursued through a

representative union in no way diminishes its effectiveness. The

appellants were entitled to bring their constitutional motion alleging a

breach of section 4 (d), provided they could demonstrate that their case

contained a feature which rendered it appropriate to do so. A refusal of

the Union on spurious grounds to prosecute their claim, would certainly

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constitute such a basis. Indeed, even if there are good reasons for a union’s

refusal to pursue a claim before the Industrial Court, this may not preclude

a constitutional claim if the applicant can prove a breach of a right under

section 4 of the Constitution. The fact of a breach of a right as well as the

refusal of the Union to pursue a claim in the Industrial Court however

justified, would constitute a special feature or exceptional circumstances

(per Jaroo v. Attorney General of Trinidad and Tobago [2002] 2 WLR

705 and AG v. Ramanoop [2005] 4 LRC 301 at 310). The appellants, in

this case have however brought no proper evidence of the union’s refusal

or of its reasons for doing so. However, since the respondent consulted

with the Union and the Union agreed with the promotions which resulted

in the by-passing of the appellants, it is inferential that the Union would

not pursue the respondents’ claims before the Industrial Court. It was a

sufficient feature to enable the prosecution of their constitutional motion

in this case subject to the appellants proving a breach of their rights.

(iv) A worker who alleges a breach of section (4) of the Constitution, must, in

the face of an existing alternative remedy in the Industrial Court provide

cogent evidence of the refusal of the Union to pursue his complaint before

that court and its reasons for refusing.

(v) But, given the Union’s participation in the promotion process, the

appellants had a heavy burden of proving inequality and unequal treatment

under section 4(d) of the Constitution, absent any allegation of collusion,

by the Union in the acts of discrimination by the employer. Without any

such complaints the appellants’ case did not get off the ground.

(vi) Once the promotions made after the first negotiations were found to have

been properly made, the appellants could not thereafter be similarly

circumstanced with workers who were again promoted in the second

negotiations.

(vii) In any event Aboud J was right that there was no breach of section 4(d).

Background

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[9] The following summary of the facts is taken from each party’s evidence.

The respondent is a body corporate established by the Port Authority Act Chap

51:01 (“the Act”) for the purpose of operating port services at the port of Port of

Spain, Trinidad and the port of Scarborough, Tobago as well as the purpose of

operating the Government shipping service between the islands of Trinidad and

Tobago.

[10] It is quite obvious from its functions that the respondent performs public

services and that those functions are public functions. Under the provisions of

section 8 of the Act, the respondent is charged with several functions including,

the development of harbours in Trinidad and Tobago and the operating of port

services and the government shipping service between Trinidad and Tobago.

[11] The development of harbours and the operation of port services is defined

to include -

(a) the provision and maintenance of facilities for the entry and berthing of

ships, the landing and embarkation of passengers, the loading, unloading,

storage and warehousing of cargo

(b) the provision and maintenance of equipment for hoisting, lifting and

transportation of cargo

(c) the erection, equipment and maintenance of quays, wharves, jetties, locks

and piers

(d) the provision of docking facilities, slipways and machine shops

(e) the provision of lights and beacons subject to the approval of the Harbour

Master, towage services, fire-fighting services, watering services,

bunkering services, rescuing services, dredging services, salvage services,

repair services and such other services as are ordinarily required by ships

coming into port in the course of their voyages. The five to nine

commissioners appointed to serve on the Port Authority are appointed by

the Cabinet of Trinidad and Tobago per section 3(2) of the Act. Their

remuneration is determined by the Cabinet. Its budget must be laid on the

table of each house of Parliament as must its statement of accounts which

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is to be transmitted to the President after the end of each financial year.

Dues, charges and fees may be charged by the respondent in accordance

with regulations made under section 75.

[12] In addition to its register of permanent employees, the respondent employs

a system of rolls to ensure that there is a reliable workforce at the port of Port of

Spain, to satisfy any demand it may have for additional labour. The four types of

rolls established by the respondent are, in descending order of priority: the Port

Followers Roll, the Temporary Roll, the Retrenchee Roll and the Seasonal Roll.

[13] The Port Followers Roll comprises a list of persons eligible to accept work

offered by the respondent periodically, when there is a need by the respondent for

extra labour. The Temporary Roll comprises a list of persons engaged by the

respondent solely on a temporary basis, including the appellants. The Retrenchee

Roll comprises the list of persons who were retrenched by the respondent in the

period 1989 to 1993. The Seasonal Roll comprises a list of names of persons who

are eligible for employment by the respondent on a seasonal basis such as during

the Christmas season or at other times during the year.

[14] Only the workers who are on the Port Register of Permanent Workers are

guaranteed work by the respondent. The workers on the respective rolls are

assigned work if the need arises and subject to their availability and skill to do the

required task. When the need for additional labour arises, the names of workers

on the Port Followers Roll will first be called upon to supplement the daily labour

force. Once the workers on that roll have all accepted (or refused) and have been

assigned work by the respondent, the workers on the other rolls, in descending

order of priority, would be called upon and assigned work.

[15] The appellants’ contract of employment is contained in a registered

collective agreement negotiated between the respondent and the union. The

Union is certified as the recognized majority Union pursuant to the Industrial

Relations Act Chapter 88:01 in respect of all the respondent’s non-administrative

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workers. The collective agreement recognises and governs permanent and

temporary workers alike. Permanent workers are classified as workers on the

Register of Permanent Employees and temporary workers are classified as

workers on the rolls. At all material times the appellants have been members of

the union.

[16] From 1976, the Union (on behalf of the workers, including the appellants)

and the respondent have negotiated and registered several collective agreements

for hourly and monthly paid workers. A collective agreement made between the

Union and the respondent and meant to govern the period 1990-1993 was

executed in 1995. Another collective agreement, which governs the period 1999-

2002, was executed in April 2002. As a result of these negotiations some workers

on the temporary, retrenchee, and seasonal rolls were reclassified or promoted to

the Port Followers Roll or to the Register of Permanent Employees.

[17] The appellants were first employed, between the years 1978 to 1980.

They are all equipment operators having commenced their employment as

temporary longshoremen. They were not promoted to the roll of Port Followers

after the first negotiations but they allege that workers who were similarly

circumstanced, were. The respondent contended however, that it promoted the

workers in consultation with the Union during the negotiation process. It also

claimed that the appellants were not similarly circumstanced with the workers

who were promoted. At the end of the second negotiations, after the motion was

filed, the appellants were promoted to the Port Followers Roll.

[18] However, the appellants alleged that other similarly circumstanced

workers were promoted from the Port Followers Roll to the Register of Permanent

Workers. They contended that the daily paid temporary workers perform duties

which were not materially different from those performed by the daily paid

permanent workers or workers on the Port Followers Roll but that the daily paid

temporary workers do not receive the same financial benefits as the daily paid

permanent workers or Port Followers Roll workers.

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[19] Finally, the appellants claim that they have been discriminated in respect

of training programmes in that port followers who had less service than they were

given more favourable treatment.

[20] The appellants gave particulars of the claims of different treatment in

respect of each of them, in which they spell out the names of other persons who

were treated more favourably than they, in terms of promotion and on the job

training. These include workers who were voluntarily separated, or who were

retrenched or dismissed but then re-employed and given ranking senior to the

appellants. They allege that daily paid temporary workers with less service than

they, were promoted to the Port Followers Roll and from the Port Followers Roll

to the Daily Paid Permanent Workers Roll.

[21] Each appellant gave some specifics of the allegation of different and

unequal treatment in respect of on the job training. Particulars of persons who

were given such preferential treatment are set out. In most cases the names of

those persons are repeated in all of the particulars. Boxhill, Phillips, Williams and

Mc Donald complained of having class 5 and 7 certificates to operate certain

equipment but being passed over for training and operation of these pieces of

equipment. Andrews made a similar complaint except that he has a class 5

certificate only. Williams also complained that he has been discriminated against

because of his age in that he was refused training on certain equipment because he

was too old to receive such training. He allege that older persons and (as well as

junior persons) were given such training.

[22] In response, Mr. Ifill, on behalf of the respondent, said it was incorrect to

say that the appellants worked continuously from the dates when they received

their first temporary assignments. By the very nature of their employment they

were employed intermittently on a temporary basis. Whether they were employed

depended entirely on the availability of work, their level of skill and competence

and their own availability to accept the tasks that may be assigned by the

respondent. The appellants were at liberty, to pursue their independent means

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of income and to supplement their personal incomes, given the temporary nature

of their employment. The available payment records of the appellants’

employment history showed that between 1986 - 1993 they did not make

themselves available for work.

[23] This allegation was refuted by the respondents. They alleged that that

period (1986-1993), was a period of recession at the Trinidad and Tobago

economy during which there was no work available at the port for them, as

opposed to them being unavailable. They also alleged that the respondent did not

regard their absence from work during that period as a break in service. Rather,

they were treated as workers who did not break their service and were entitled to

vacation leave with pay. The judge accepted the appellants’ contention.

[24] Mr. Ifill deposed that the respondent and the Union pursuant to good

industrial relations practice, entered into negotiations in 1992 (the first

negotiations) and 2003 (the second negotiations) to determine which worker on

the rolls will be reclassified or promoted to the Port Followers Roll or to the

Register of Permanent Workers based on the need for additional labour at those

times. Those workers who were promoted or reclassified were chosen by the

respondent together with the union, through this negotiating and consulting

machinery. The respondent could not promote or transfer the appellants without

consultation and agreement with the Union and without reference to the demand

for additional labour at the Port of Spain port.

[25] He said that the criteria developed by both the respondent and the Union

for the transfer or promotion of workers from one roll to the other are as follows -

(a) by reference to the size of the workforce needed on a particular roll

(b) the qualifications of the particular worker to perform the work of

equipment operator

(c) the availability and willingness of the worker to perform work.

The administrative system and procedures employed by the respondent have been

devised over the years in negotiations with the Union and are in compliance with

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the several collective agreements negotiated and registered by the respondent and

the union. This system guarantees fair and equal treatment to the respondent’s

labour force and guarantees that its workers including appellants are treated fairly

and consistent with good industrial relations practices.

[26] At the time of the first negotiations, all of the appellants were found by

both the Union and the respondent to be unqualified for promotion or

reclassification for the following reasons -

(a) they did not have the requisite experience or qualification to be accepted

as equipment operator,

(b) their high level of absenteeism at the respondent since their first date of

employment and

(c) they were not available for selection at the time.

All the workers who were either unavailable for work or who did not have the

requisite qualifications were, like the appellants, not promoted or transferred to

the Port Followers Roll. Moreover, no other worker was reclassified or promoted

without consultation with the Union or without representations having been made

on their behalf by the union.

[27] Effective 1986, the respondent required licensing certification for

employees to operate the respondent’s equipment. This was part of a safety

system which the respondent introduced to minimize the incidents of industrial

accidents. The licencing certification required was a minimum of Class IV

driver’s permit. While other employees had this certification and were duly

accepted on the roll as equipment operators in 1993, the appellants did not have

this qualification at the date when promotions and reclassifications were being

effected by the respondent (1992-1993).

[28] Mr. Ifill added that in any event, the respondent has since promoted or

reclassified the appellants to the Port Followers Roll since the second promotion

or transferring exercise with the union.

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[29] Mr. Ifill stated that the workers identified by the appellants as having

bypassed them were not similarly circumstanced to any of them. At the dates of

their promotion those workers were among the names recommended for

promotion by the union, they each possessed a driver permit of at least a class IV

had a far superior attendance record than the first appellant and was available for

work at that time. The appellants possessed only a driver’s permit of class III, had

poor attendance records and were not recommended for promotion by the union.

[30] Indeed several workers whose names preceded the appellants on the

temporary roll were also not promoted for the very same reasons. The names of

those persons, who had more years of service than the appellants and were not

promoted to the Port Followers Roll, still appear on the Temporary Roll.

[31] He added that it is also untrue that the appellants were discriminated

against in the job training programmes. The first appellant received on the job

training from 2000 to date on Container Lifts, Mobile Crane operations, tractor

trucks, Manitowoc M 250 Mobile Crane and he also underwent hearing and eye

tests provided by the respondent.

[32] The workers Brian Alexander and Cecil Dell mentioned in the particulars

were not similarly circumstanced to the appellants. At the date of their respective

appointments to the Port Followers Roll, unlike the appellants, they had the

necessary qualifications of class 3 to 5 in the case of Brain Alexander and 1 to 7

in the case of Cecil Dell.

[33] Over the period 1999 to the present, the second appellant was given a

general medical examination by the respondent as well as training on the SISU

and Fantuzzi Reach Stackers and Full Container Handling training.

[34] Over the period 1988 to the present the third appellant received training

for the Sisu and Fantuzzi Reach Stackers, Tractor Truck operations, Haulmajor

training, Ship to Shore Liebherr Crane empty container handling, container lift

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and reach stackers and full container handling.

[35] Over the period 1997 to the present the fourth, fifth and sixth appellants

underwent training for tractor truck handling, sisu fantuzzi reach stackers, empty

container handler and container lifts and full container handling.

[36] In any event as early as 17th

October 2002 the respondent had responded

to the first appellant’s request for promotion and provided its reasons for not

accepting the appellants to the Port Followers roll. There was no response to that

letter by the Union prior to the filing of this action herein.

[37] In answer, the appellants conceded that at the time of the promotions in

1992 they, did not have the minimum class IV driver’s permit. (A fact they did

not initially disclose) They alleged however that they did subsequently obtain the

class IV driver’s permit but still were not promoted “even though other similarly

circumstanced workers like us have been promoted since 1993”. They added that

they made complaints to both the respondent and the Union which were not

addressed and that the Union took no action on their behalf, in the Industrial

Court. They also contended that the respondent in any event has not answered all

the evidence they put forward to show that they had been discriminated against in

respect of the training programs

Findings of the judge

[38] Aboud J held as follows :

(i) That the respondent was a public authority amendable to public law relief

under the Constitution. He applied the decision of the European Court of

Justice in Foster v British Gas PLC [1991] 1 QB 405 that the concept of

a public body must be understood very broadly and would include, “a

body, whatever its legal form which has been made responsible pursuant

to a measure adopted by the state, for providing a public service under the

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control of the state and has for that purpose special powers beyond ….

those which result from the normal rules applicable between individuals

…”

(ii) That the respondent carried out a “public service” function because it is

empowered inter alia to develop harbours, operate port services and

shipping between Trinidad and Tobago, the provision and maintenance of

facilities of entry and berthing of ships, the erection of quays, wharfs and

jetties. These are functions to better serve the needs of the public. It is

“controlled” by the Executive because, inter alia its commissioners are

appointed by the President on the advice of the Cabinet and it subject to

governmental control - to wit: it must have Cabinet approval to borrow, its

budget is met by the Government. It also exercised special powers by

virtue of its right solely to manage and operate port services at the Port of

Spain port and had power to impose dues, charges and as well as powers

of levy and arrest in respect of arriving ships.

(iii) The appellants had no remedy in the Industrial Court against the

respondent. While they may have a remedy against their Union in the

civil court if the Union were negligent or biased against them and they

may be entitled to a declaration and to damages only. A distinct class of

aggrieved worker is excluded from the precincts of that court and deprived

of the wider and more generous powers of the Industrial Court. The

appellants allege a breach of their constitutional rights and there is no

procedure alternative to the motion.

(iv) In relation to the promotions that occurred after the first negotiations, the

appellants were not similarly circumstanced to the workers who were

promoted to the roll of port followers. The most significant difference

was that they did not possess the requisite drivers’ licence. Further, they

did not have the support of the union. The advocacy of the Union must

count as a difference between the workers in a practical sense. While the

respondent made the ultimate choice it could only do so on the basis of

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discernment. Part of its discernment involved the union’s recommendation

of some workers and not others. The workers not recommended for

promotion cannot be in the same position as those who were, and this is

independent from the involvement of any constitutional principle. It is a

real difference. To promote a worker other than one recommended by the

Union means that a worker who has Union support will be left behind,

which can trigger a trade dispute with the recognised union. The number

of workers who had less years’ service was not, relative to the number of

promotions, great and the difference in terms of time was mostly one year

or less.

(v) In relation to the second negotiations, those workers who were promoted

from the Port Followers Roll to the Register of Permanent Workers were

not similarly circumstanced to the appellants. In the first place, those

workers were already on the Port Followers Roll and the appellants were

not. To amount to a fair comparison the appellants ought to have

produced evidence of workers on the temporary rolls who by-passed the

Port Followers Roll and entered the Register of Permanent Workers. To

say that simply on the basis of tenure they should have been promoted

over workers on the Port Followers Roll is to invite controversy with the

workers who are being by-passed. The representations of the Union will

again amount to a practical difference between them, and so too their

attendance record during the recession.

(vi) In relation to the 19 promotions made from the Port Followers Roll to the

Register of Permanent Workers in 2005, insufficient data was provided to

make any useful comparison. The promoted workers were on the Port

Followers Roll longer than the appellants, who had been on that roll for

only a year. Again, previous comments would apply, because other

workers on that roll would likely be aggrieved if they were by-passed by

recently appointed port followers, such as the appellants.

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Summary of the arguments

[39] As to the first preliminary question it was essential to the appellants’ case

for them to show that the respondent is an arm of the State and that its action was

state action which attracted the strictures of sections 4 and 5 of the Constitution.

The appellants thus alleged that -

(a) the respondent is part of the executive arm of the State and

(b) it is a public authority exercising coercive powers for and on behalf of the

executive arm of the State

(c) it performs governmental functions which include the development of

harbours and the operation of port services in Trinidad and Tobago.

[40] The appellants pointed to the functions and powers of the Port Authority

set out in sections 8 and 9 of the Act. They asserted that by section 15 of the Act,

the President (effectively the Cabinet) gives to the respondent, special or general

directions of the policy to be followed in the exercise of the powers conferred on

the respondent. The respondent falls under the portfolio of the Minister of

Finance. By section 64 of the Act, the government must meet the deficits arising

out of the service provided by the respondent and by part XI of the Act, the

respondent is given the power to make regulations for fixing the rates of dues and

other charges in connection with its functions. It is also given the power to make

regulations for the carrying out of its aims and objectives. Further, the respondent

enjoys monopoly status.

[41] The respondent contended, inter alia, that -

[i] The Union is entitled to negotiate with the respondent on behalf of the

appellants with respect to the terms and conditions of employment of the

appellants or raise as a trade dispute with the Minister of Labour under

the Act, any dispute with regard to the terms and conditions of the

employment of the appellants, including any alleged failure of the

respondent to promote or reclassify or transfer the appellants.

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[ii] Pursuant to the collective agreement, the respondent established a register

for registered permanent employees and rolls to satisfy the demand for

additional labour that may be available at the respondent.

[iii] The system devised and agreed between the respondent and the Union and

provided for by the collective agreements to ensure there is a reliable

workforce at the port of Port of Spain also emerged from a long

established custom and practice developed since the 1970’s and is

described hereunder.

[iv] The respondent is not a part of the executive arm of the State. It is a body

corporate established by the Act for the purposes of operating port

services at the port of Port of Spain, Trinidad and the port of Scarborough,

Tobago and (inter alia) of operating the government shipping service

between the islands of Trinidad and Tobago. Pursuant to the provisions of

the Act, the respondent is authorised to hire its own staff.

[v] The respondent regularly employs workers at several levels for the

operation of port services. They are either employed by entering into

contracts in writing or orally as in the case of the appellants. The

respondent is not engaged in any public function in the employment of the

appellants.

[42] As to the second preliminary issue, the respondent contended that except

for senior managers and its estate constable force, the respondent’s entire labour

force is represented by the Union. The Union is certified as the recognised

majority union pursuant to the Industrial Relations Act Chapter 88:01 in respect

of workers employed by the respondent who are comprised in a distinct

bargaining unit of hourly and monthly paid workers. The appellants are hourly

rated workers of the respondent and are members of or are represented by the

union.

Conclusions

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[43] We agree entirely with the approach of the Aboud J and with his

conclusion that the respondent is a public authority for the purposes of section 4

and 5 of the Constitution. The case law is clear that a public authority performing

state functions can infringe any of the provisions of sections 4 and 5 rights. The

decision of the Privy Council in Maharaj v. AG (No. 2) [1979] AC 385, 396 is

good authority for that proposition. Speaking on the right of the aggrieved citizen

to apply for redress under section 6 of the predecessor 1962 Constitution (which

corresponds to section 14 of the 1976 Constitution) he said :

“Section 6(1), (section 14 of the 1976 Constitution) … is not

expressed to be subject to s 3 (section 6 of the 1976 Constitution).

It is general in its terms. So it applies to any interference with a

right or freedom recognised and declared by s 1 (Section 4 of the

1976 Constitution) except insofar as that interference would have

been lawful under the law in force in Trinidad and Tobago on

31st August 1962. If it would not have been lawful under that

previously existing law, s 6 creates a new right on the part of the

victim of the interference to claim a remedy for it described as

‘redress’. This remedy of ‘redress’ co-exists with any other

remedy to which the victim may have been entitled under the

previously existing law.

To revert then to the legal nature of the rights and freedoms

described in paras (a) to (k) of s 1, (section 4 of the 1976

Constitution) and, in particular, to the question, against whom is

the protection of the individual in the exercise and enjoyment of

those rights and freedoms granted? In his dissenting judgment

Phillips JA said :

‘The combined effect of these sections [sc 1, 2 and 3], (sections

4, 5 and 6 of the 1976 Constitution) in my judgment, gives rise to

the necessary implication that the primary objective of Chapter 1

of the Constitution is to prohibit the contravention by the State of

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any of the fundamental rights or freedoms declared and

recognised by s 1’ (section 4)

Read in the light of the recognition that each of the highly

diversified rights and freedoms of the individual described in s 1

(section 4) already existed, it is in their Lordships’ view clear

that the protection afforded was against contravention of those

rights or freedoms by the state or by some other public authority

endowed by law with coercive powers. The chapter is concerned

with public law, not private law. One man’s freedom is another

man’s restriction; and as regards infringement by one private

individual or rights of another private individual, s 1 (section 4)

implicitly acknowledges that the existing law of torts provided a

sufficient accommodation between their conflicting rights and

freedoms to satisfy the requirements of the new Constitution as

respects those rights and freedoms that are specifically referred

to.

Some of the rights and freedoms described in s 1 (section 4) are

of such a nature that, for contraventions of them committed by

anyone acting on behalf of the state or some public authority,

there was already at the time of the Constitution an existing

remedy, whether by statute, by prerogative writ or by an action

for tort at common law. But for others, of which ‘(c) the right of

the individual to respect for his private and family life’ and ‘(e)

the right to join political parties and express political views’ may

be taken as examples, all that can be said of them is that at the

time of the Constitution there was no enacted law restricting the

exercise by the individual of the described right or freedom. The

right or freedom existed de facto. Had it been abrogated or

abridged de facto by an executive act of the state there might not

necessarily have been a legal remedy available to the individual

at a time before the Constitution came into effect, as, for

instance, if a government servant’s right to join political parties

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had been curtailed by a departmental instruction. Nevertheless

de facto rights and freedoms not protected against abrogation or

infringement by any legal remedy before the Constitution came

into effect are, since that date, given protection which is

enforceable de jure under s 6(1) (section 14(1) of the 1976

Constitution) : cf. Oliver v. Buttigieg [1967] 1 A.C. 115”

[44] Lord Diplock’s dictum traverses all of the issues now under consideration.

The fact that there were already legal remedies (in some cases) in existence at the

time of passage of the 1962 predecessor Constitution, ultimately led to his dictum

in Harrikissoon v. The Attorney General (1979) 31 WIR 348 which eventually

addressed the question of misuse of the section 14 “redress” provision, when the

proper course was the pursuit of a private law remedy.

[45] But as to the question of infringement of the provisions section 1 and 2 of

the old Constitution (sections 4 and 5 of the 1976 Constitution) Lord Diplock

was clear that such rights can be infringed “by the State or some other public

authority endowed by law with coercive powers”. Later, in Thornhill v. AG

1981 AC 61 at 74, he went on to widen the definition of public authority to

include police officers, as follows :

“Contraventions by the police of any of the human rights or

fundamental freedoms of the individual that are recognised by

Chapter I of the Constitution thus fall squarely within what has

since been held by the Judicial Committee in Maharaj v.

Attorney General of Trinidad and Tobago (No. 2) [1979] A.C.

385, 396, to be the ambit of the protection afforded by section 6,

(section 14) viz. contraventions “by the state or by some other

public authority endowed by law with coercive powers.” In this

context “public authority” must be understood as embracing

local as well as central authorities and including any individual

officer who exercises executive functions of a public nature.

Indeed, the very nature of the executive functions which it is the

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duty of police officers to perform is likely in practice to involve

the commonest risk of contravention of individual’s rights under

section 1 (a) (section 4) and (b), through overzealousness in

carrying out those duties.”

[46] Since that decision, given over thirty years ago what constitutes executive

functions has changed significantly. The fact is that a privately incorporated

company, despite the manner of its incorporation, can be a public authority if its

functions are governmental in nature. Lord Nicholls of Birkenhead in the case of

Aston Cautlow and others v. Well Bank and another [2004] 1 AC 546 at 554

captured the modern approach when he said :

“In a modern developed state governmental functions extend far

beyond maintenance of law and order and defence of the realm.

Further, the manner in which wide-ranging governmental

functions are discharged varies considerably. In the interest of

efficiency and economy, and for other reasons, functions of a

governmental nature are frequently discharged by non-

governmental bodies. Sometimes this will be a consequence of

privatisation, sometimes not. One obvious example is the

running of prisons by commercial organisations. Another is the

discharge of regulatory functions by organisations in the private

sector, for instance, the Law Society”

[47] At paragraph 27 of his judgment Aboud J applied the test as set out by the

European Court of Justice in Foster v. British Gas Pic [1991] 1 QB 405 (and

applied by the House of Lords in the same case which was referred back to it by

the ECJ - see [1991] 2 AC 306). We consider that test to be appropriate and that

the judge was right in its application to the functions and powers of the

respondent, and in his conclusion; Thus, in considering whether the relevant body

is a public authority (for the purposes of sections 4 and 5 of the Constitution) the

question will be whether :

(i) The authority, is a body, whatever its legal form, which has been made

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responsible by the State for providing a public service

(ii) That public service is under the control of the State

(iii) For that purpose, it has been provided with special powers beyond those

which result from the normal rules applicable in relations between

individuals.

[48] In my judgment such bodies will not escape provisions of section 4 and 5

if in fact they perform functions which are in essence governmental and if, in

doing so, they infringe the rights and freedoms of citizens. Mr. Prescott submitted

that there was no exercise of coercive powers by the employer in this case. In my

judgment, the definition of public authority as set out in Foster does not require

the functions or powers exercised to be coercive. More importantly section 4(d)

also does not speak of coercive powers. It speaks simply of “any functions”.

[49] These criteria are clearly met by the respondent in this case. The functions

set out in sections 8 and 9 are clearly “public service” functions. By section 15

of the Act it is subject to the special or general policy directions of the Cabinet of

Trinidad and Tobago. By section 64 of the Act, the central government must

meet any deficit in the annual operations of the respondent. These clearly meet the

“control” criteria. By part XI of the Act the respondent is given “special

powers” to make regulations for fixing rates and other charges in connection with

its functions and for the carrying out of its aims and objectives.

[50] Such special powers are also evidenced by the provisions of section 35 (1)

and (2) by the respondent being given exemption from customs duty in respect of

any plant, machinery, appliances, equipment and materials “of every kind

whatsoever” imported into Trinidad and Tobago by the respondent for the

purpose of carrying out its functions. By section 35(2) the respondent’s income is

wholly exempt from income tax.

The Public Law/Private Law dichotomy

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[51] Not all wrongful acts of a public authority will necessarily attract

constitutional relief. That said, it does not always follow that to attract

constitutional relief the act must be a public act in the purest sense. For the

purpose of establishing a constitutional breach by a public authority, it will not

always be necessary to establish that the acts complained of were of a public

nature in the sense that that term is used in judicial review. Conversely, the fact

that the act complained of may have been committed in the course of a contract

will not defeat a constitutional claim by reason of that fact only. The fact that it

may be in breach of contract does not necessarily pre-empt a constitutional

challenge. For example, the failure by a public authority to pay for goods and

services provided under a contract will found no constitutional claim if the

complaint is strictly about non payment. But if the contractor alleges non

payment is part of a pattern of discrimination in which other contractors with

outstanding invoices are favoured with payments while he is not, such an

allegation may found an additional claim under the Constitution. Similarly a

decision by a public authority not to advertise in a particular newspaper or on a

specific radio station, while on its face a question of freedom of contract, may

well found a basis of complaint under section 4(d) (and section 4b) if it is alleged

and proven that the decision may be motivated by considerations which are

political, racial, gender related or religious or some other colourable basis.

Equally, allegations that the workers were promoted ahead of the appellants

because of political or familial concerns can also found a successful basis of

complaint under sections 4(b) and 4(d). These examples are not exhaustive. Any

act of discrimination will attract the sanction of the Constitution. No pattern of

discrimination is required. A single act will suffice. The provisions of sections 4

and 5 themselves provide the basis of the complaint. They found the claim itself.

That is a sufficient basis upon which a claimant may proceed. The fact that the

act for which there is complaint arises out of a contract will be no relevance to the

viability of the constitutional claim in those circumstances.

[52] The private law nature of the act therefore will not be the sole basis by

which the notice of motion will be judged. The decision will turn on the facts and

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circumstances of the case; that is to say, the nature of the allegations and the

nature of the act complained of and the evidence led in support of the motion.

Alternative remedy

[53] In Jaroo (supra) the Privy Council held that where a parallel remedy

existed, the right to apply for redress under section 14(1) of the Constitution was

to be exercised only in exceptional cases. It was held that an originating motion

under section 14(1) was appropriate in cases where the facts were undisputed and

only questions of law were in issue. It was wholly unsuitable in cases depending

for their decision on the resolution of disputes of fact which are right to be

determined by the procedures available in the ordinary courts under common law.

See the dictum of Lord Hope of Craighead at paragraphs 37 and 38. There, he

addressed Lord Diplock’s much quoted passage that “the mere allegation that a

human right of fundamental freedom… is likely to be contravened is not itself

sufficient to ……. the applicant to invoke the jurisdiction of the court … if it is

apparent that the allegation is frivolous or vexatious or an abuse of process … as

being made solely for the purpose of avoiding in the normal way for the

appropriate judicial remedy …”

[54] Counsel for Jaroo had submitted that it was the making of a “mere

allegation” of a contravention of a right which was being criticised by Lord

Diplock and provided a claimant could establish that there had been a breach of a

constitutional right, the choice of remedy was a matter for the individual. Lord

Hope in rejecting the argument stated :

“The appropriateness or otherwise of the use of the procedure

afforded by section 14(1) must be capable of being tested at the

outset when the person applies by way of originating motion to

the High Court. All the court has before it at that stage is the

allegation. The answer to the question whether or not the

allegation can be established lies in the future. The point to

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which Lord Diplock drew attention was that the value of the

important and valuable safeguard that is provided by section

14(1) would be diminished if it were to be allowed to be used as a

general substitute for the normal procedures in cases where

those procedures are available. His warning of the need for

vigilance would be deprived of much of its value if a decision as

to whether resort to an originating motion was appropriate could

not be made until the applicant has been afforded an opportunity

to establish whether or not his human rights or fundamental

freedoms had been breached.

Their Lordships respectfully agree with the Court of Appeal that,

before he resorts to this procedure, the applicant must consider

the true nature of the right allegedly contravened. He must also

consider whether, having regard to all the circumstances of the

case, some other procedure either under the common law or

pursuant to statue might not more conveniently be invoked. If

another such procedure is available, resort to the procedure by

way of originating motion will be inappropriate and it will be an

abuse of the process to resort to it. If, as in this case, it becomes

clear after the motion has been filed that the use of the procedure

is no longer appropriate, steps should be taken without delay to

withdraw the motion from the High Court as its continued use in

such circumstances will also be an abuse.”

[55] Jaroo was clarified in Ramanoop (supra) a case in which the Privy

Council found that while the applicant for constitutional relief did have an

alternative remedy, the allegations of constitutional breaches were such that the

applicants’ motion was a bona fide invocation of the section 14(1) provision.

[56] The Privy Council noted that an originating motion was a summary

procedure and save for the simplest of cases, ill-suited to decide substantial

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factual disputes. Having noted Lord Diplock’s concerns in Harrikissoon that the

mere allegation of a breach of sections 4 and 5 did not entitle an applicant to

invoke section 14, if it is apparent it was made solely for the purpose of avoiding

necessity of applying in the normal way for the appropriate judicial remedy Lord

Nichols of Birkenhead at page 310 said :

“In other words, where there is a parallel remedy constitutional

relief should not be sought unless the circumstances of which

complaint is made include some feature which makes it

appropriate to take that course. As a general rule there must be

some feature which, at least arguably, indicates that the means of

legal redress otherwise available would not be adequate. To seek

constitutional relief in the absence of such a feature would be a

misuse, or abuse, of the court’s process. A typical, but by no

means exclusive, example of a special feature would be a case

where there has been an arbitrary use of state power.

That said, their Lordships hasten to add that the need for the

courts to be vigilant in preventing abuse of constitutional

proceedings is not intended to deter citizens from seeking

constitutional redress where, acting in good faith, they believe

the circumstances of their case contain a feature which renders it

appropriate for them to seek such redress rather then rely simply

on alternative remedies available to them. Frivolous, vexatious

or contrived invocations of the facility of constitutional redress

are to be repelled. But ‘bona fide resort to rights under the

Constitution ought not to be discouraged’: see Ahnee v DPP

[1999] 2 LRC 676 at 687 per Lord Steyn and see Observer

Publications Ltd. v Matthew [2001] UKPC 11, [2001] 4 LRC 288

at 305 per Lord Cooke of Thorndon.

[57] I agree with Aboud J that the appellants were entitled to bring their

constitutional motion. (albeit not for the reasons he gave) The appellants do not

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contest the existence of the alternative remedy. They say in effect that the union,

through which they must go to pursue it, has refused to represent them before the

Industrial Court. They are thus forced to come to the High Court seeking redress

under section 14(2) of the Constitution.

[58] The right to pursue a trade dispute before the Industrial Court in respect of

a breach of a worker’s terms and conditions is an important remedy available to

the worker. It is part of the worker’s right to the protection of the law under

section 4(b) of the Constitution (see Alleyne & Ors. v. The AG Civil Appeal No.

52 of 2003). It is an effective alternative remedy by which a worker can vindicate

his rights before a court specially equipped to address issues peculiar to its

jurisdiction. The fact that such a right can only be pursued through the Union in

no way diminishes its effectiveness. A worker who is aggrieved by his non

promotion should ordinarily pursue his grievance through his Union in the

Industrial Court.

[59] But where his constitutional rights have in fact been infringed he is

entitled to come to the High Court for redress under section 14 if he can show that

his case contains a feature which renders it appropriate to do so. A refusal by his

representative Union could amount to such a feature.

[60] Indeed, even if there are good reasons for a Union’s refusal to pursue a

complaint before the Industrial Court, this may not preclude a constitutional

action, if an applicant can prove a breach of his right. The fact of such a breach

and the refusal of the Union to pursue a complaint, however justified, may

constitute exceptional circumstances or a special feature (per Jaroo/Ramanoop)

sufficient to justify an originating motion under section 14 of the Constitution.

But it will be important for the worker to prove the fact of the refusal and to set

out any reasons given by the Union for refusing. A worker who alleges a breach

of section 4(d) of the Constitution, given the existence of alternative remedy

before the Industrial Court (through his union), must provide cogent evidence of

the refusal of his Union to pursue his complaint before that court and of its

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reasons for refusing to do so. Ultimately it will be for the Court to decide whether

on the face of the motion the matter should proceed as a constitutional claim.

[61] A union may justifiably refuse to pursue a trade dispute if it considers that

the worker has no proper case to prosecute. In such circumstances, the worker

either has no other recourse (especially if the decision is right) or he may sue the

Union civilly if he considers that it was negligent in its representation. But he

may also bring an originating motion under section 14(1) of the Constitution if he

can prove that the employer has infringed his rights under section 4. In the

ordinary course however, where the union is correct that the case has no merit, the

worker has no other recourse and must accept the decision. Unless there is

collusion with the employer (which in effect constitutes bad faith by the Union in

its representation of the worker) there is no injustice. A legitimate refusal to

proceed by a representative union is simply another aspect of due process. But it

will be for the Court to determine whether that union was correct or not.

Moreover even if it is correct, the Court may decide that the motion may proceed

if on the face of it if there appears to be merit in the assertion that the worker’s

rights were infringed.

[62] The appellants undoubtedly have a right to institute constitutional

proceedings if in fact their rights have been infringed. Lord Nicholls in

Ramanoop cautioned against the alternative remedy policy being used to stifle

the pursuit of legitimate claims under the Constitution. It was thus necessary for

the appellants, to prove on a balance of probability that the Union refused to

prosecute their claim before the Industrial Court as a means of showing why the

alternative remedy was not pursued. In this case other than the bald statement

that the Union (which is not a party to this proceeding) has refused to pursue their

case, nothing has been provided by the appellants, by way of detail, of the facts

and circumstances of the refusal and the reasons given by the union.

[63] I do not consider that the appellants have brought proper evidence of the

fact of the union’s refusal. Neither have they begun to suggest the reasons for the

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refusal. But given that the respondent contends (which is not disputed) that it

consulted with the Union when making the promotions, there is a proper basis for

inferring that the Union did refuse to pursue any claim by the appellants before

the Industrial Court. No doubt it did so because it had participated fully in the

consultation exercise and had agreed with the promotions. It is indeed unlikely

that the Union would have agreed to promotions but still pursue a claim on behalf

of the very workers it agreed to bye-pass. On the facts of this case the refusal

constituted a special feature which justified the pursuit of an originating motion

under section 14 and the exploration of the issues raised in it.

[64] The appellants however had a difficult burden of proving discrimination

by the respondent under section 4(d) of the Constitution in circumstances in

which their representative Union has consulted with their employer and agreed

with the employer to reject them as candidates for promotion; unless of course

they allege collusion between the Union and the employer such that the Union

participated in the acts of discrimination perpetrated by the employer.

The claim itself

[65] I turn then to the claims of the appellants of breach of section 4(d) of the

Constitution. Having thoroughly examined the facts of this case, I am satisfied

that there has been no breach of section 4(d) of the Constitution.

[66] A person who alleges that his right under section 4(d) has been infringed

by a public authority must establish that he has been treated differently from some

other similarly circumstanced person or persons. Mendonça JA in Graham v.

Police Service Commission and the AG of Trinidad and Tobago, Civil Appeal

No. 143 of 2006 noted at paragraph 58, that “this does not mean that the

comparison must reveal no differences between them. What it does mean is that

the comparison must be such that the relevant circumstances in one case are the

same or not materially different in the other” (citing Bhagwandeen v. The AG

[2004] UKPC 21).

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[67] In this case Aboud J found that the appellants were not similarly

circumstanced with any of the persons they purported to use as comparators. He

did not then have to consider the other legal principles applicable to a section 4(d)

breach, nor did he proceed to do so.

[68] I consider that the judge was right in his decision. The appellants had a

heavy burden of proving unequal treatment. The employer consulted with their

representative union before making promotions in which the appellants were by-

passed. I cannot conceive of any action being successful in these circumstances

given the absence of an allegation of collusion by the Union in the acts of

discrimination of the employer, such as to amount to bad faith in its representation

of the appellants. Nothing of the sort has been alleged. This alone is a sufficient

basis on which to dismiss this motion.

[69] Mr. Maharaj submitted that, irrespective of the necessity to consult with

the union, the respondent bore the ultimate decision making responsibility in

promoting the appellants. The respondent did not have to agree with the Union if

that meant treating the appellants unfairly.

[70] The submission on its face is entirely correct. But the obverse of that

submission demonstrates the difficulty in which the respondent would find itself

were it to refuse to act on the recommendations of the union. To reject the

Union’s recommendations would no doubt be met with the submission that the

workers who were recommended by the union, were treated unfairly by the

respondent or, that they were discriminated against by the respondent. Not to

mention that the respondent also would be met with a full blown trade dispute, as

Aboud J rightly noted.

[71] But more significantly, there is nothing in the evidence to suggest that the

recommendations of the Union were biased or unfair, such as to require the

respondent rightly to reject them.

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[72] Moreover, it is not every act of discrimination which offends section 4(d).

We discriminate everyday in our choices, of people we wish to associate with.

Such choices will be informed by our socialisation. Not all of them may be

constitutionally unpalatable. Discrimination on justifiable grounds does not

infringe section 4(d). It is those choices which are based on some colourable

ground or criterion which offend section 4(d). Acting on the recommendations of

the Union in negotiations which are regular and proper will not, prima facie,

offend section 4(d) more so, when such consultation is mandated by statute, in

this case, the Industrial Relations Act Chap 88:01.

[73] Mr. Maharaj submitted that the respondent should have disclosed what the

recommendations were in respect of the appellants. If the respondent wished to

rely on those recommendations as a defence to a constitutional claim, then, the

onus was on the respondent to say why the appellants were not recommended and

to say what criteria were applied. This was also part of the candour required of

state agencies in public law applications.

[74] The submission is without merit. This was nothing more than an attempt

to shift the burden of proof away from the appellants, who themselves have not

always been candid with the Court. The evidence was not even peculiarly within

the respondents’ knowledge. That information was available to the appellants

from the Union. The appellants as members of the Union, were entitled to be

informed by the Union of the reasons why it did not recommend them for

promotion.

[75] The appellants have not given any evidence of whether they sought this

information from the Union. No proper evidence that they sought such

information (by letter for example) was provided. They have not even provided

cogent evidence of the fact of the Union’s refusal to pursue their claim in the

Industrial Court.

[76] Their lack of candour is demonstrated by their failure to disclose in their

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initial affidavits that they lacked the necessary class IV driving permits at the time

of the first negotiations which rendered them ineligible for promotion. Their

ineligibility was only conceded in answer to Mr. Ifill who revealed their

ineligibility in his affidavit in reply to their initial assertions.

[77] Further, I agree with the reasons of Aboud J which I have summarised at

paragraph 38 above. I would add that once the promotions which were made after

the first negotiations were found to have been properly made (as we have) the

appellants could not thereafter be said to be similarly circumstanced with workers,

who having been promoted ahead of them after the first negotiations, were further

promoted after the second negotiations or otherwise.

[78] The appellants attempted to surmount that hurdle by pointing to the fact

that they had either more years of service, or the same years of service, as those

promoted from the Followers Roll to the Register of Permanent Employees and

that there was no material difference in the work done by the various workers on

each Roll. Whatever their contention however, they cannot escape the fact that

those workers having been validly promoted to the Port Followers Roll, were no

longer in a similar position to the appellants.

[79] This argument was also prayed in aid of the appellants’ argument in

respect of the nineteen promotions made from the Port Followers Roll to the

permanent establishment in 2005. Aboud J found that the workers who were

promoted to the permanent establishment were on the Port Followers Roll longer

than the appellants and were not proper comparators. The appellants contended

that the promoted workers were junior to them in terms of years of service.

Additionally, they contended that the respondent did not respond to this evidence

and in any event did not rely on dissimilarity of circumstances as a defence to

their allegations. It was not therefore a relevant consideration for the judge.

[80] In my judgment the fact that the respondent did not answer the allegation

of seniority or rely on the dissimilarity of circumstances in respect of the 2005

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promotions did not disentitle the judge from making the finding that he did. That

consideration was totally pertinent to the question he had to address i.e. whether

the appellants were true comparators. It was a matter which was in evidence and

which he was entitled to consider. As to the judge’s finding that there was

insufficient data provided in respect of the 2005 promotions to make any useful

comparison, the appellants contended that since their evidence was never

responded to or challenged, it was undisputed. I agree but the appellants still

cannot surmount the obstacle that the promoted workers were ahead of them by

virtue of their earlier promotion to the Port Followers Roll.

[81] Finally, as to the question of discrimination in respect of on-the-job

training I do not consider that any case of discrimination or different treatment

has been made out. Even if the respondent did not answer all the evidence of the

appellants, it provided sufficient information to show that the appellants

themselves were given on the job training from time to time. It cannot be

expected that equality of treatment of employees will be measured with

mathematical exactitude.

[82] I am satisfied that on the totality of the evidence the respondent has in no

way discriminated against the appellants, or treated them unfairly for the purposes

of section 4(d) of the Constitution. Aboud J was right to dismiss the motion on

the merits.

[83] In the result both appeal and cross appeals are dismissed. I make no order

as to costs.

Nolan P.G. Bereaux

Justice of Appeal

republic of trinidad and tobago in the court of …€¦ · 3. anthony phillips 4. edward williams...

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