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Trinidad and Tobago High Court |
] [Hide Context] THE REPUBIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
Claim No. CV 2012-04245
BETWEEN DESMOND RENNE
AND
Claimant
THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO
BEFORE THE HONOURABLE MR. JUSTICE PETER A. RAJKUMAR APPEARANCES:
Mr. K Thompson for the Claimant
Ms. Josefina Baptiste instructed by Mr. N Smart for the Defendant
Defendant
Background
JUDGMENT
1. The Claimant was convicted of various criminal offences, and
sentenced to serve a term of imprisonment. He appealed to the Court
of Appeal.
He alleges that the Court of Appeal failed to make a decision, pursuant to
section 49 (1) of the Supreme Court of Judicature
Act Chap. 4:01, (s. 49), to
reduce his sentence by taking into consideration his detention before the
determination of his appeal.
2.The Claimant contends that had the Court of Appeal considered Section 49 (1) ,and made the decision to consider his pre conviction detention, he would not have spent a further 15 months in prison in excess of his original term of imprisonment.
The Claimant asserts that this failure breached his Constitutional rights. He seeks a declaration that his imprisonment from the 7th day of February 2007 to the 7th day of May, 2008,
(as a result of the failure of the Court of Appeal to backdate his sentence
to the 10th day of February, 2003), contravened the Claimant’s
fundamental right to liberty except by due process of law as guaranteed
by section 4 (a) of the Constitution of Trinidad and Tobago.
He also seeks an order for monetary compensation to be assessed for the
alleged breach of his fundamental right.
3. He claims that:-
“In disposing of my appeal, the Court of Appeal did not make a
direction under Section 49(1) of the Supreme Court of Judicature
Act Chapter
4:01 as to whether the time I spent in custody awaiting the appeal, this
is, from 10th day of February 2003 to the 10th day of May
2004 (15 months), should be counted towards my sentence.” (Para 8
of affidavit)
“In fact, the Court of Appeal specifically ruled that my term of
imprisonment should start to run from the said 10th day of May 2004.
The Court of Appeal gave no reasons for its decision in that
regard”. (Para 9 of affidavit)
4. He relies on judgments by the Privy Council in the case of Vijai
Bhola v The State of Trinidad and Tobago (Privy Council Appeal No 26 of
2005), and Ali v The State of Trinidad and Tobago [2005] UKPC 41,
and on a successful claim in the High Court by the applicant Bhola,
before the Honourable Justice Gobin, pursuant to the said Privy
Council decision, for damages for constitutional
redress, (the High
Court there exercising its constitutional jurisdiction).
5. Section 49 of the Supreme Court of Judicature Act Chapter 4:01 is
as follows:-
49. (1) The time during which an appellant, pending the determination of his appeal, is released on bail, and subject to any directions which the Court of Appeal may give to the contrary to any appeal, the time during which the appellant, if in custody, is specially treated as an appellant under this section, shall not count as part of any term of imprisonment under his sentence, and, in the case of an appeal under this Act, any imprisonment under the sentence of the appellant, whether it is the sentence passed by the Court of trial or the sentence passed by
the Court of Appeal, shall, subject to any directions which may
be given by the Court of Appeal, be deemed to be resumed or to
begin to run, as the case requires, if the appellant is in
custody, as from the day on which the appeal is determined, and, if
he is not in custody, as from the day on which he is received into prison under
the sentence. (“s.49”)
6. The default position under s. 49 is that, without a
specific direction from the Court of Appeal otherwise, the time
between
conviction and determination of appeal is NOT to be counted, unlike
the position in the UK.
7. In so far as he claims that the Court of Appeal made a specific
direction that the term of his imprisonment should run from the date
that his
appeal was determined his evidence is that the Court of Appeal did in fact
appear to apply its collective mind to s. 49.
8. In the matter of Ali v The State of Trinidad and Tobago [2005]
UKPC 41 Section 49 (1) of the Supreme Court of Judicature Act was
considered. In that case the Privy Council noted ( at paragraph 11):-
“The effect of the order of the Court of Appeal was that the
sentence which the appellant would have to serve was increased
from eleven years
to fifteen years and almost three months, which exceeds the maximum sentence for
the offence. He was actually in
custody from the date of his conviction on 14
November 1991 until 6 June 2003, when he was granted parole. He
accordingly
served a term of eleven years and seven months in prison, a period
exceeding the sentence originally imposed, without taking any
account of
remission to which he would have been entitled.”
At paragraphs 16-17 of the Judgment the Court stated:-
The legislation governing loss of time varies between the several Caribbean jurisdictions. The majority of enactments now are in terms similar to the Criminal Appeal Act 1968 in England, but several, including Trinidad and Tobago, make provision on the same lines as the Criminal Appeal Act 1907. Their Lordships are very conscious that it is a matter for the legislature in each jurisdiction to enact its own rules, reflecting conditions in its own state. They accordingly
do not consider it appropriate to express a preference for either
approach. In a jurisdiction which has a statutory provision similar
to s
49(1), an appellate court must start with the statutory injunction regarding
loss of time. It should consider in each case
in the light of the relevant facts
whether to exercise its discretion to backdate the sentence and, if so, for what
length of time.
Appellate courts are entitled to exercise their discretion in
the manner which they think appropriate, provided it is consistently
exercised
and in accordance with proper principle. What their Lordships propose to do is
to make clear the approach which appellate
courts should adopt to provisions on
lines similar to s 49(1), bearing in mind the rationale and objective of such
provisions.
In the first place, their Lordships consider that the making of orders
backdating sentences to the date of conviction should not be
restricted to
exceptional cases. Secondly, it is wrong in principle to take into account the
heinousness of the offence or the prisoner’s
lack of remorse, for these
are factors which are relevant only when the original sentence is passed.
Counsel for the State cited
to the Board an Australian decision, R v Wort
[1927] VLR 560, also referred to by the Court of Appeal in Tiwari’s
case, in which the Court of Criminal Appeal of Victoria had regard to the
prisoner’s record and the leniency of the sentence.
Their Lordships
consider that this was incorrect in principle and that this decision should not
be followed. Similarly, regard should
not be paid to the prisoner’s
conduct since conviction, except in so far as it may tend to show his state of
mind in applying
for leave to appeal. Thirdly, any decision by which it
is determined that there should be loss of time should be proportionate,
that is
to say, it should impose a penalty for bringing or persisting with a frivolous
application which fairly reflects the need
to discourage wasting the
court’s time without inflicting an unfairly long extension of imprisonment
upon the applicant. Their
Lordships do not wish to be prescriptive about the
appropriate length of loss of time orders, which is a matter for each
appellate court in each individual case. They consider, however, that
they should be made with regard to the abuse which they are designed to
curb and would not
expect them to exceed a few weeks in the large majority of
cases.
9. In the matter of Vijai Bhola V The State of Trinidad and Tobago
Privy Council Appeal
No 26 of 2005 the Privy Council at paragraphs 1-2 and 25 applied
Ali as follows:-
“On 29 October 2001 the appellant, Vijai Bhola, was convicted before
Baird J and a jury of demanding money with menaces on 20
June 1995 for which he
was sentenced to six years imprisonment with hard labour. On 18 December 2002
the Court of Appeal of Trinidad
and Tobago (Hamel-Smith, Lucky and
Kangaloo JJA) dismissed his appeal against conviction. Because
the
Court of Appeal made no direction under section 49(1) of the Supreme Court
of Judicature Act, the appellant’s time in custody
(some thirteen and a
half months) between conviction and appeal did not count towards his sentence.
Special leave to appeal against
conviction was given by the Board on 19 July
2004.
At the close of the hearing before the Board on 31 January 2006 their
Lordships announced their decisions to dismiss the appellant’s
appeal
against conviction but to grant him special leave to appeal against the failure
to make a section 49(1) direction and to allow
that appeal and direct that the
time between the appellant’s conviction and the determination of his
appeal should count as
part of his term of imprisonment which should be deemed
to run as from the date of his conviction on 29 October 2001. Accordingly
the
appellant was to be released immediately. The Board now gives its reasons for
these decisions.
25. It remains to consider the appeal against sentence which the Board can deal with altogether more briefly. This appeal concerns the proper approach to section 49(1) of the Supreme Court of Judicature Act in Trinidad and Tobago and involved no more than the straightforward application of the Board’s very recent decision in Ali v State of Trinidad and Tobago (Practice Note) [2005] UKPC 41; [2006] 1 WLR 269. It is quite unnecessary to rehearse here the substance of that decision or, indeed, set out again the terms of section 49(1). Suffice it to say that this appellant’s appeal to the Court of Appeal could not possibly have been characterised as frivolous or time-wasting and no basis whatever has been suggested for that court properly to have withheld the direction necessary under section 49 to ensure that the appellant was not penalised as to his time in custody through having exercised his right of appeal. The appeal to the Board on this issue was in truth here irresistible and it is to the State’s credit that Mr Guthrie was in the event instructed not to resist it. The Board accordingly made the order indicated at
the outset of this judgment. In the result the appellant stands convicted
but has now served his sentence.”
10. The distinction between Bhola and the instant case is that in Bhola the appellant there appealed to the Privy Council. The Court of Appeal in that case delivered reasons -
a. which enabled the Privy Council to make the observation that it did that no basis whatever has been suggested for that court properly to have withheld the direction necessary under section 49 and that by so doing, in the circumstances of that case, had improperly extended the length of that appellant’s sentence
b. which enabled the Honourable Justice Gobin to conclude that a factual basis existed to characterise the failure in that case to exercise s.49 jurisdiction as error of a type that allowed exercise of constitutional jurisdiction and which entitled the then appellant Bhola to constitutional redress.
(Whether or not this court agrees with that decision is not relevant as the
factual scenario here is entirely different).
11. In the instant case the claimant did not appeal his
conviction or sentence to the Privy Council. He therefore does
not have
the benefit of a finding of that court similar to Bhola. He does not
therefore have any basis before this
court to substantiate his necessary
assertion that his situation, in not being afforded a back dating of his
sentence, was similar
to that of Bhola.
12. The Honourable Justice Gobin found in Bhola, based on the judgment of the Court of Appeal that the Court of Appeal had not adverted to section 49 and they had given no reason for not applying their discretion in favour of the applicant Bhola. (See paragraph 16 of that judgement). In fact however, the claimant here himself suggests that the Court of Appeal specifically ordered that his sentence run, not from the date of conviction, but from the date of appeal. This suggests that, rightly or wrongly, the Court of Appeal did advert to, and did specifically exercise its jurisdiction and discretion under s 49, though not in the claimant’s favour.
13. If that is so it cannot be contended that there was a
procedural error of the type in Bhola, where it was the finding
that no basis whatever had been suggested for that court properly
to have withheld the direction necessary under
section
49. It was the finding that this deprived Bhola of the
opportunity to have the time between conviction and determination of appeal
taken into account, unnecessarily extending his
sentence with no basis having
been provided for so doing, which established the foundation for his
application for constitutional redress.
14. In this case this court is asked to exercise a similar
constitutional jurisdiction to that exercised by the Honourable
Justice Gobin
in Bhola. .However this court would first have to have a similar
foundation for concluding that the Court of Appeal, similar to the situation
in
Bhola, did not advert to its section 49 jurisdiction, or withheld the direction
under section 49 backdating the applicant’s
sentence without any basis,
resulting in the excessive imprisonment of the claimant.
15. The Honourable Justice Gobin had such a basis in the judgment of the Court of Appeal and in the decision and written judgment of the Privy Council. In fact the Privy Council in Bhola made its findings on the failure to exercise its s. 49 jurisdiction by the Court of Appeal on a substantive criminal appeal against conviction.
In the instant case the claimant does not have reasons from the Court of
Appeal before this court, presumably because he
did not appeal
the decision of the Court of Appeal, delivered since 10th
May, 2004.
16. The High Court here is being asked in effect to make such a finding of fact and law in this constitutional motion based on nothing more that the applicant’s affidavit, which itself suggests that, unlike in Bhola, the Court of Appeal considered and applied s. 49, though not in the claimant’s favour. However, even if the Court of Appeal applied s. 49 wrongly, and erred in law in so applying it, that error would be one of substantive law, and cannot entitle the claimant to constitutional relief. Without such a finding there would be no basis for the High Court to invoke its original constitutional jurisdiction.
17. Even ignoring for the moment the applicant’s affidavit
evidence, in the absence of reasons from the Court of Appeal, or a
finding by
the Privy Council, the High Court would be required to embark on the same
analysis that the Privy Council did in Bhola,
on a substantive criminal appeal,
in order to conclude that the Court of Appeal – an appellate court –
failed to properly
exercise its s. 49 jurisdiction on that appeal. Without such
a finding the necessary basis does not exist for even considering whether
Constitutional breach has occurred thereby, (so as to entitle the claimant to
consideration as to the availability of constitutional
redress)
18. It is obvious that the High Court, even exercising
its original Constitutional jurisdiction, cannot sit in appeal of a
substantive Court of Appeal decision. To ask it in effect to do so
amounts to a clear abuse of process.
19. Further, if the key to the exercise of any constitutional
jurisdiction by the High Court is a failure in the process of appeal, there
is
no basis in fact to substantiate any such failure. In so far as the claimant
seeks to rely on his own affidavit in this regard,
it does not establish that
the Court of Appeal failed to properly exercise section 49 jurisdiction, only
that it consciously exercised
such discretion against him.
20. The claimant does not indicate whether he was represented by
counsel at the Court of Appeal, and does not contend that
he was not
afforded a hearing on the exercise of section 49 in relation to him, or that
natural justice was thereby breached, or
that the opportunity to argue the point
was not afforded the appellant. If the appellant was afforded the
opportunity on appeal
to argue the point but did not avail himself of such
opportunity then he cannot then later say that the failure to backdate was
procedurally
wrong, and in breach of natural justice.
21. The claimant is surprisingly reticent on what transpired in the
Court of Appeal save to contend that the exercise of s 49 discretion
was
not in his favour. He has not produced a transcript of the proceedings
or sought to raise any specific allegations as
what transpired at the hearing
of his appeal. Even to do so however would have identified
the similarity
between an appeal, and the exercise that this court would
necessarily have to have embarked upon in order to put this action and
the case
of Bhola on the same factual footing
22. The instant claim is an abuse of process. It requires this court
in effect to sit as a Court of appeal in relation to the exercise by
the Court of Appeal of its appellate criminal jurisdiction, so as to make
the finding, necessary to the granting of constitutional relief,
that the Court
of Appeal erred in relation to the exercise or non exercise of its s. 49
jurisdiction. This it cannot do.
23. The claimant failed to avail himself of the opportunity to obtain
such a finding by appeal to the Privy Council, the body capable
of sitting in
appeal of the decision in question. It is an abuse of process to seek such a
determination from the High Court.
24. It is a further abuse of process in that the affidavit of the
claimant establishes no factual basis for his contention that the
actions or
omissions of the Court of Appeal in relation to the exercise / failure to
exercise a section 49 jurisdiction, were
of such a nature as to give
rise to or afford constitutional redress.
LAW
25. Alternative remedy
The Defendant’s submits that once there is an
alternative remedy the Constitutional
Court should not invoke its jurisdiction to grant relief.
In Maharaj v The Attorney General of Trinidad and Tobago (No. 2) (1978) 30 WIR 310 at page 321 (a) the Court stated:
“In the first place, no human right or fundamental freedom recognised by Chapter I of the Constitution is contravened by a judgment or order that is wrong and liable to be set aside on appeal for an error of fact or substantive law, even where the error has resulted in a person's serving a sentence of imprisonment. The remedy for errors of these kinds is to appeal to a higher court. When there is no higher court to appeal to then none can say that there was error. The fundamental human right is not to a legal system that is infallible but to one that is fair. It is only errors in procedure that are capable of constituting infringements of the rights protected by s 1 (a), and no mere irregularity in procedure is enough, even though it goes to jurisdiction; the
error must amount to a failure to observe one of the fundamental rules
of natural justice. Their Lordships do not believe that this can be
anything but a very rare event.”
Further at at 321e -“In the third place, even a failure by
a judge to observe one of the fundamental rules of natural justice
does
not bring the case within s 6 unless it has resulted, is resulting or is likely
to result, in a person being deprived of life,
liberty, security of the person
or enjoyment of property. It is only in the case of imprisonment or corporal
punishment undergone
before an appeal can be heard that the consequences of the
judgment or order cannot be put right on an appeal to an appellate court.
It
is true that instead of, or even as well as, pursuing the ordinary course of
appealing directly to an appellate court, a party
to legal proceedings who
alleges that a fundamental rule of natural justice has been infringed in the
course of the determination
of his case, could in theory seek collateral relief
in an application to the High Court under s 6(1), with a further right of appeal
to the Court of Appeal under s 6(4). The High Court, however, has ample powers,
both inherent and under s 6(2), to prevent its process
being misused in this
way; for example, it could stay the proceedings under s 6(1) until an appeal
against the judgment or order complained of had been disposed
of.”
26. In Thakur Jarooo v The Attorney General of Trinidad and
Tobago [2002] UKPC
5 at paragraph 14 of its decision the Privy Council noted:-
[14] The Court of Appeal also rejected the appellant's argument under s 4(a). But Hosein JA, in a judgment with which de la Bastide CJ and Ibrahim JA agreed, raised the question for the first time whether the constitutional route which the appellant had chosen for his application was appropriate. The question which he posed was whether proceedings under the Constitution ought really to be invoked in matters where there is an obvious available recourse under the common law. He referred to Lord Diplock's observation in Harrikissoon v A-G (1979) 31 WIR
348 at 349 that the mere allegation of constitutional breach was insufficient to entitle the applicant to invoke the jurisdiction of the court under what is now s 14(1) of the Constitution if it was apparent that the allegation was frivolous or vexatious or an abuse of the process of the court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy. He said that in his opinion the appellant's motion was inescapably doomed to failure on the merits. But he also said that it connoted a resort to
proceedings under the Constitution which lacked bona fides and was so
clearly inappropriate as to constitute an abuse of
process.
At Paragraph 39 of the Jaroo decision the Court stated:
“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 statute 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....”
27 .In Forbes v Attorney General of Trinidad and Tobago [
2002] UKPC
21
the Appellant sought to appeal the decision of the Court of Appeal
affirming his sentence and conviction in the absence of the Magistrate’s
reasons. The Privy Council at Paragraph 13 of its judgment stated:-
“The appellant has spent two periods in custody, one of
nineteen months as a prisoner on remand and one of eleven months as a convicted
prisoner serving a term of imprisonment with hard labour. The first was the
result of a conviction which cannot be shown to be safe;
the second was the
result of an error of law on the part of the Court of Appeal in upholding
the conviction. The conviction has now been quashed. The question, therefore,
is whether a person who has served a term of imprisonment before his conviction
is quashed on appeal has
been
deprived of his constitutional rights to due process and the protection of the
law.” (Emphasis added)
At paragraph 15 (citing Chokolingo v A.G [1981] 1 WLR 106) Lord
Diplock stated:
'Acceptance of the applicant's argument would have the consequence that in every criminal case, in which a person who had been convicted alleged that the judge had made any error of substantive law as to the necessary characteristics of the offence, there would be parallel remedies available to him: one by appeal to the Court of Appeal, the other by originating application under s 6(1) of the Constitution to the High Court with further rights of appeal to the Court of Appeal and to the Judicial Committee. These parallel remedies would be also
cumulative since the right to apply for redress under s 6(1) is stated to
be “without prejudice to any other action with respect
to the same matter
which is lawfully available. The convicted person having exercised
unsuccessfully his right of appeal to a higher
court, the Court of Appeal, he
could nevertheless launch a collateral attack (it may be years later)
upon a judgment that the Court of Appeal had
upheld, by making an
application for redress under section 6(1) to a court of co-ordinate
jurisdiction, the High Court. To give to Chapter I of the Constitution an
interpretation which would lead to this result would, in their
Lordships’ view, be quite irrational and subversive of the rule of law
which it is a declared purpose of the Constitution to
enshrine.”
[16] In Nankissoon Boodram v Attorney-General (1995)
47 WIR 459, the appellant, who was on trial for murder, complained that his
constitutional rights had been infringed by continuing press reports
which were
calculated to prejudice his trial and by the failure of the Director of Public
Prosecutions to take measures to forestall
or prevent their publication. His
constitutional motion was dismissed by the Court of Appeal and its decision was
affirmed by the
Board. Lord Mustill said (at pp 494, 495):
'The “due process of law” guaranteed by this section has two
elements relevant to the present case. First, and obviously,
there is the
fairness of the trial itself. Secondly, there is the availability of the
mechanisms which enable the trial
court to protect the fairness of the trial
from invasion by outside influences. These mechanisms form part of the
“protection
of the law” which is guaranteed by s 4(b), as do the
appeal procedures designed to ensure that if the mechanisms are incorrectly
operated the matter is put right. It is only if it can be shown that the
mechanisms themselves (as distinct from the way in which, in the individual
case, they are
put into practice) have been, are being or will be subverted that
the complaint moves from the ordinary process of appeal into the
realm of
constitutional law ...
...The Board held that, since the appellant had been represented by counsel on his appeal against conviction and this had enabled him to argue any matters reasonably open to him, the ordinary appellate processes had given him adequate opportunity to vindicate his right to a
fair hearing, so that his constitutional motion had properly been
dismissed. Lord Bingham of
Cornhill said (at para [24], p 114):
'It would be undesirable to stifle or inhibit the grant of constitutional
relief in cases where a claim to such relief is established
and such relief is
unavailable or not readily available through the ordinary avenue of appeal. As
it is a living, so the Constitution
must be an effective, instrument. But Lord
Diplock's salutary warning remains pertinent: a claim for constitutional
relief does not ordinarily offer an alternative means of challenging a
conviction or a judicial decision ... The appellant's complaint was one
to be pursued by way of appeal against conviction, as it was
...'
The Court in Forbes (at paragraph 18 of its judgment), stated,
“Their lordships do not think that it would be helpful or desirable to
add their own observations to the foregoing citations. They
establish that it is
only in rare cases where there has been a fundamental subversion of the rule
of law that resort to constitutional redress is likely to be appropriate.
However the exceptional
case is formulated, it is clear that the constitutional
rights to due process and the protection of the law do not guarantee that
the
judicial process will be free from error. This is the reason for the
appellate process. In the present case the appellant was deprived of his
liberty after a fair and proper trial before the magistrate, that is to say
by
due process of law. The appellant was able to challenge his conviction by way of
appeal to the Court of Appeal and, when the Court
of Appeal wrongly failed to
quash his conviction, by way of further appeal to the Board. The appeals
were conducted fairly and without procedural error, let alone any subversion of
the judicial process. The appellant
thus enjoyed the full protection of the law
and its internal mechanisms for correcting errors in the judicial process. His
constitutional
rights have not been infringed, and the courts of Trinidad and
Tobago were right to dismiss his constitutional motions.” (Emphasis
added)
28. Delay
The Defendant contends, inter alia, that failure of the Court of Appeal, (if any), to give a direction under section 49 (1) would not have been capable of constituting a procedural error but rather a substantive error of law which was rectifiable by way of appeal. The Claimant did have the alternative remedy of applying for special leave to appeal to the Privy Council in relation to
the determination and judgment of the Court of Appeal in his criminal trial.
The fact that he did not do so, and has delayed long
past the time when he could
have done so, to now seek constitutional relief, is itself an abuse of process,
as recognized by the
Privy Council in Durity v Attorney General of Trinidad
and Tobago [2002] UKPC 20 .
It stated, (at Paragraph 35), “In this context the Board consider it
may be helpful if they make certain general observations. When a court is
exercising its jurisdiction
under section 14 of the Constitution and has to
consider whether there has been delay such as would render the
proceedings an abuse or would disentitle the claimant to relief, it will
usually be important to consider whether the impugned decision or conduct was
susceptible of adequate redress by a timely application to the court under its
ordinary, non-constitutional jurisdiction. If it was, and if such an application
was not made and would now be out of time, then,
failing a cogent explanation
the court may readily conclude that the claimant’s constitutional motion
is a misuse of the court’s
constitutional jurisdiction. This
principle is well established. On this it is sufficient to refer to the much
repeated cautionary words of Lord Diplock in Harrikissoon
v A-G of Trinidad
and Tobago [1980]
AC 265, [1979] 3 WLR 62, 268 of the former report. An application
made under s 14 solely for the purpose of avoiding the need to apply in the
normal
way for the appropriate judicial remedy for unlawful administrative
action is an abuse of process. (Emphasis added)
Conclusion
29. The claimant’s application is dismissed on the grounds that it is an abuse of process for the aforementioned reasons including:-
i. The claimant’s evidence in support of the instant application does not support his contention that the Court of Appeal failed to consider s. 49 and make an appropriate loss of time order.
ii. The application amounts to a collateral attack on the decision of the Court of Appeal with no good reason or cogent explanation having been provided for the claimant’s failure to avail himself of the necessary alternative remedy of a timely appeal of the decision of the Court of Appeal.
Orders
30. i. The claimant’s claim is dismissed.
ii. The claimant is to pay to the Defendant costs in the sum of
$14,000.00.
Dated this 28th day of January
2013.
Peter A. Rajkumar
Judge.
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