In the Full Court of the High Court of the Supreme Court of Judicature of Guyana

1

1999NO. 61-APLDEMERARA

IN THE FULL COURT OF THE HIGH COURT OF THE SUPREME COURT OF JUDICATURE OF GUYANA

ON APPEAL FROM A JUDGE IN CHAMBERS OF THE SUPREME COURT OF JUDICATURE

(CONSTITUTIONAL JURISDICTION)

In the matter of Articles 40, 138,

141 and 144 of the Constitution

of Guyana.

-and –

In the matter of an Application by Abdool Saleem Yasseen and Noel Thomas.

BETWEEN:

1. ABDOOL SALEEM YASSEEN
2. NOEL THOMAS

(Appellants/Plaintiffs)

- and -

1. THE ATTORNEY GENERAL OF GUYANA
2. THE DIRECTOR OF PRISONS

(Respondents/Defendants)

Mr. S. Fraser with Messrs. N. Hughes, T. Housty, R. Forde, A. Nandalall, R. Armour, D. Mendez and Ms. N. Pierre for Appellants/Plaintiffs.

Mr. C.R. Ramson, SC, Attorney General in person and with Mrs. H. Hamilton and Mr. S. Datadin and Ms. D. Downes for second-named Respondent.

J U D G M E N T

BERNARD, CJ:

On 30th March, 1987 the Appellants were indicted for the murder of Abdool Kaleem Yasseen, and after two trials on 6th December, 1992 they were sentenced to death. An appeal to the Court of Appeal was dismissed in June, 1994. Thereafter there were several constitutional motions heard in the High Court and appeals arising from rulings therefrom in the Court of Appeal as well as a petition to the United Nations Human Rights Committee. The latter body in March, 1998 recommended that the Appellants be released, but this recommendation was not put into effect. In fact on 9th September, 1999 warrants for their executions were read to take effect on 13th September, 1999.

On 12th September, 1999 the Appellants filed a writ of summons and an ex parte application by way of affidavit against the Respondents, and obtained a conservatory order from Hon. Mr. Justice Winston Moore staying their executions until the hearing and determination of the summons.

Arguments were heard in chambers over a period of eleven (11) days, and on 18th October, 1999 the learned chamber judge refused the grant of a conservatory order or stay of the executions until the hearing and determination of the action, and disallowed the filing of any pleadings followed by a trial. It is from this order that the Appellants have appealed to this Court.

The grounds of appeal pertinent to the issues to be decided are as follows:

1. The learned trial judge misdirected himself on the law as it

relates to the granting and refusal of conservatory orders in

death penalty cases;

1. The learned trial judge failed to consider, or alternatively

misdirected himself on the legal principles applicable in

the determination of the question whether the action brought

by the appellants/plaintiffs was frivolous and vexatious;

1. The learned trial judge misdirected himself in law, or

alternatively, exceeded his jurisdiction when he purported

to make findings of fact at an interlocutory stage of the

proceedings;

1. The learned trial judge misdirected himself in law, or

alternatively, exceeded his jurisdiction when he purported

to finally determine legal issues at an interlocutory stage

of the proceedings;

1. The learned trial judge failed to identify the issues that he

had to determine and to advert his mind thereto;

1. The learned trial judge erred in law when he failed to

properly apply the legal principles in determining whether

to continue a conservatory order in relation to the appellants/

plaintiffs’ submission on bias in the Attorney General;

1. The learned trial judge failed to appreciate the nature and

extent of his judicial responsibility on the hearing of an

interlocutory summons for the grant or continuation of a

conservatory order in a death penalty case;

1. The learned trial judge erred in law when he failed to consider

the appellants/plaintiffs’ submissions that their right of

hearing precluded a trial judge on hearing interlocutory

proceedings from making an order that would cause or permit

or encourage their claim in the writ of summons to be

defeated by executive action;

In the course of his ruling the learned chamber judge found that the contentions concerning the Advisory Council on the Prerogative of Mercy as well as the course of pleadings followed by a trial were and would be frivolous and vexatious and an abuse of the process of the Court. He found no merit in the Appellants’ case as being such that pleadings should be allowed, and in fact ruled that they did not succeed in any of their contentions all of the points raised having been fully argued.

In order to appreciate the issues involved in the appeal it is necessary to set out verbatim the relief sought by the Appellants in the Indorsement of Claim of the writ of summons filed. It reads as follows:

1. A declaration that the Plaintiffs’ fundamental right to

life, liberty, and security of the person and the protection

of the law guaranteed to them by the Constitution of the

Republic of Guyana have been violated by the Defendant.

1. A Declaration that the death sentence prescribed by

Section 100 of the Criminal Law Offences Act, Chapter

8:01 and sections 163 and 190 of the Criminal Law

(Procedure) Act, Chapter 10:01 is unconstitutional and

a violation of the Plaintiffs’ aforesaid fundamental

rights under article 40 of the Constitution of the

Republic of Guyana.

1. A Declaration that the Defendants violated the Plaintiffs’

Constitutional rights and/or entitlement to a fair hearing

before the Advisory Council of the Prerogative of Mercy

in that (a) the Plaintiffs were given no opportunity to be

heard before the said Advisory Council and/or (b) the

deliberations and/or the decision of the Advisory Council

on the Prerogative of Mercy were and are tainted by bias

in that the 1st named Defendant as a sitting member of the

same brought to its deliberations predetermined views

and/or policy considerations of the Executive when the

said Advisory Committee met in relation to the plaintiffs.

1. A declaration that the Plaintiffs rights to a fair trial and/or

to protection of the law were and have been violated in so

far as important police documents were withheld from

them at their trial and that they had no legal representation

for several days of the said trial.

1. A declaration that having regard to all of the above

circumstances including from their aforesaid conviction

and the delay between their aforesaid conviction and the

reading of the warrant to them last Thursday 9th September,

1999, is inordinate and violates their rights not to be sub-

jected to inhuman and degrading treatment or punishment

under article 141 of the Constitution of Guyana.

1. A Conservatory Order and/or alternatively a stay of

execution directing the Defendants by themselves their

servants agents or however otherwise not to execute

the plaintiffs pending the hearing and determination of

their action herein.

1. Further or other relief as to the Court is just under the

Constitution.”

Counsel for the Appellants contended that before the learned chamber judge could arrive at the conclusions which he did pleadings would have had to be filed, and he had only the indorsement of claim before him; further, the issue as to whether an action is frivolous and vexatious cannot be determined until the pleadings have been filed. He submitted that the trial of the issues involved by the learned chamber judge was a usurpation of the functions of a judge who would ultimately hear the action, and he ought to have addressed his mind only to the issue of whether he should continue the conservatory order.

Counsel for the Appellants pointed out that there was no application by the Respondents (Defendants in the proceedings) either orally or by way of summons to have the Appellants’ writ of summons dismissed for being frivolous and vexatious, and this course was embarked upon on the chamber judge’s own initiative. He also stressed that the Appellants adopted the procedure of approaching the court by way of writ of summons as they were alleging infringements of rights under the Constitution of Guyana outside of Aritcles 138 to 151, e.g. they were seeking a Declaration as to violation of their fundamental rights under Article 40. Although conceding that courts have an inherent common law power in addition to the powers conferred by the rules of court to dismiss actions as being frivolous and vexatious these powers must be exercised fairly and sparingly. Counsel emphasised that the learned chamber judge had no pleading before him upon which he could have come to the conclusion that the Appellants’ claims were frivolous and vexatious or bound to fail.

The Court’s attention was directed to the case of Reckley v. Ministerof Public Safety and Immigration and others (1995) AC 491, and the principles laid down therein which should guide a court in determining whether a conservatory order should be granted, and Counsel submitted that the learned chamber judge failed to have regard to these principles, and in fact did not refer to the case at all in his ruling.

Counsel for the Appellants also raised the issue of the use made by the learned chamber judge of the affidavits filed, and contended that he ought not to have based his findings on the merits of the Appellants’ claims on the affidavits which were not pleadings.

The learned Attorney General in reply contended that the Appellants sought to employ maximum delay by filing a writ of summons instead of a motion. He joined issue with Counsel for the Appellants submission that the learned chamber judge exceeded his jurisdiction by determining all of the issues only on the indorsement of claim, and drew the Court’s attention to Sections 24 and 25 of the High Court Act, Cap 3:01 which confers unlimited jurisdiction on a judge of the High Court. He submitted that the learned chamber judge had an inherent power to deal with the matter in the way he did even though he found that the course of pleadings would be frivolous and vexatious. He referred to the case of M v. Home Office(1992) 4 AER 97, and particularly the judgment of Lord Donaldson, MR at page 133 where he stated that the High Court is a court of unlimited jurisdiction, and any orders made by such a court is binding unless and until set aside.

He further submitted that the issue of a person’s right to life as enshrined in Article 40 of the Constitution was already considered by former Mr. Justice Small, and as such is res judicata, according to recent decisions of the Privy Council the Appellants have no right to be heard before the Advisory Council on the Prerogative of Mercy, in fact all matters raised by the Appellants were already litigated. The learned chamber judge therefore had good cause for coming to the conclusion that the Appellants’ action was bound to fail and was frivolous and vexatious. He reiterated that the Respondents did not seek to strike out the Appellants’ indorsement of claim, and the Court having acted on its inherent jurisdiction this Court ought not to interfere with the discretion which reposes in a trial judge if that discretion was judicially exercised.

Let me stated at the outset that there is no doubt that a judge sitting in he High Court has unlimited jurisdiction and an inherent jurisdiction in relation to matters which come before that court for determination. The statutes and legal authorities support this contention. More specifically the inherent jurisdiction extends to striking out, staying or dismissing an action.

In our jurisdiction thirty (30) years ago Vieira, J in Chintamanie Ajitv. Horace Mitchell and Others (1969) GLR, 307 recognised the inherent jurisdiction reposing in the High Court apart from the powers given by rules of Court, to stay or dismiss actions and to strike out pleadings which are vexatious or frivolous or are in any way an abuse of the process of the court, and so ruled.

The main issue in this appeal is whether the learned judge sitting in chambers in an interlocutory matter ought to have ruled that no pleadings were necessary as the Appellants’ claims in the indorsement of claim were bound to fail and were frivolous and vexatious.

Order 17 Rule 31 of the Rules of Court is to this effect:

“The Court or a Judge may at any stage of the

proceedings order to be struck out or amended

any matter in any indorsement or pleading which

may be unnecessary or scandalous, or which may

tend to prejudice, embarrass, or delay the fair

trial of the action; and may in any such case, if

the court or Judge shall think it, order the costs of

the application to be paid as between solicitor and

client”. (Emphasis mine).

Order 17 Rule 32 provides for striking out a pleading for different reasons, and is to this effect:

“The Court or a Judge may order any pleadings to

be struck out on the ground that it discloses no

reasonable cause of action or answer, and in any

such case, or in case of the action or defence being

shown by the pleadings to be frivolous or vexatious,

the Court or a Judge may order the action to be stayed

or dismissed, or judgment to be entered accordingly,

as may be just”. (Emphasis mine).

An analysis of both rules suggests that Rule 31 contemplates a situation where a Judge having looked at the indorsement of claim or a pleading determines hat any matter in either is unnecessary, scandalous, prejudicial, embarrassing or calculated to delay the fair trial of an action, and may order such matter to be struck out.

Rule 32 envisages a situation where a Judge having looked at a pleading determines that it discloses no reasonable cause of action or answer or determines after examining the pleadings that they are frivolous or vexatious, and may order the pleading to be struck out and the action stayed or dismissed or judgment entered accordingly.

One similarity between the two Rules is the Court’s or Judge’s power to strike out matter in an indorsement or pleading. However, there are subtle differences not immediately discernible upon a casual reading of both Rules, and the fact that there are two rules empowering Judge to strike out suggests that they are intended to cover different situations.

Under Rule 31 the Judge may look at an indorsement of claim or pleading and decide that any matter or possibly all matters in it are unnecessary or scandalous, prejudicial or embarrassing, and strike it out. The result may be that the whole indorsement is struck out and the action may be dismissed; alternatively, the action may proceed without the offending matter.

Rule 32, however, seems to contemplate the striking out of a pleading alone if after considering it the Court or Judge comes to the conclusion that it discloses no reasonable cause of action or answer or it has been demonstrated by the pleadings that the action is frivolous or vexatious. In these circumstances the Court or Judge may order the action to be stayed or dismissed or that Judgment be entered accordingly.

Rule 32 suggests that one can only determine whether an action is frivolous or vexatious if the pleadings so demonstrate whereas under Rule31 either the indorsement or the pleadings may disclose matter which is scandalous, prejudicial or embarrassing, and may be struck out on these grounds.

Our Rules undoubtedly were adopted from the English Rules, specifically Order 18 Rule 19 formerly Order 25, Rule 4. It is a combination of both our Rules 31 and 32 and Rule 19 (1) is to this effect:

“The Court may at any stage of the proceedings order

to be struck out or amended any pleading or the

indorsement of any writ in the action, or anything in

any pleading or in the indorsement, on the ground that –

(a)it discloses no reasonable cause of action or defence,

as the case may be; or

(b)it is scandalous, frivolous or vexatious; or

(c)it may prejudice, embarrass or delay the fair trial of

the action; or

(d)it is otherwise an abuse of the process of the Court;

and may order the action to be stayed or dismissed

or judgment to be entered accordingly, as the case

may be.”

Under the English rule the Court is empowered to strike out any pleading or the indorsement on any of the grounds listed; specifically the indorsement of a writ of summons can be struck out if it is shown to be frivolous and vexatious.

The commentary on the scope of the rule in the Supreme Court Practice 1973 states that the rule empowers the Court to strike out any pleading or indorsement or any matter contained therein which does not conform with the overriding rule that a pleading must contain only material facts to support a party’s claim or defence, and must not therefore be, or contain any matter which is scandalous, frivolous or vexatious or is otherwise an abuse of the process of the Court. However, several authorities indicate that it is only in plain and obvious cases that recourse should be had to the summary process under this rule.

In the case of Wright v. Prescot U.D.C. (1916) 115 L.T. 772 it was held that though every court had an inherent jurisdiction to set aside a writ which it might consider an abuse of the process of the court the motion must be dismissed with costs as an application such as this could not be made under Order 25 Rule 4 (now Order 18 Rule 19) until pleadings had been delivered.

Against this there is the case of Marchioness of Huntly v. Gaskell (1905) 2 Ch, 656 where it was held that where the Court is of the opinion that the indorsement on a writ are embarrassing or otherwise an abuse of the process of the Court it will order the whole of them to be struck out. However, in that case it was found that the indorsement was vicious, and in fact Vaughan Williams, L.J. expressed the view that when the Court finds an indorsement which is vicious in the respects in which that one was vicious it ought to strike out the whole of the indorsement instead of portions of it and leave the Plaintiff at liberty to issue a new writ.

In Wills v. Earl Beauchamp (1886) 11 P, 59 the undoubted inherent jurisdiction of the Court to dismiss an action if it appears frivolous and vexatious and an abuse of the process of the Court was considered and applied. Bowen, L.J. conceded that one ought not lightly to stay an action at its inception or pronounce it frivolous and vexatious the object of which is to ascertain and declare a right, but he felt it was obviously for the benefit of both parties to explain to the plaintiff at an early state that he had really no legal rights which he could prosecute with any success.

Each case obviously must be decided on its own facts, and in Willis v.Earl Beauchamps (supra) it was patent that the plaintiff could not succeed in obtaining revocation of a grant of letters of administration.

Lord Herschell in Lawrence v. Lord Norreys (1890) 15 App. Cas. 210 also conceded the inherent jurisdiction of the Court to dismiss an action, but entered this caution: