Alexander Okuonghae v University of Technology Jamaica

JurisdictionJamaica
JudgeMcdonald-Bishop, J
Judgment Date19 September 2014
Neutral Citation[2014] JMSC Civ 138
Docket NumberCLAIM NO. 2010 HCV 01454
CourtSupreme Court (Jamaica)
Date19 September 2014

[2014] JMSC Civ. 138

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2010 HCV 01454

Between
Alexander Okuonghae
Claimant
and
University of Technology, Jamaica
Defendant

Ms. Aisha Mulendwe and Patrick Forrester for the claimant

Gavin Goffe and Jermaine Case instructed by Myers , Fletcher & Gordon for the defendant

EMPLOYMENT LAW — UNIVERSITY — VISITOR — TERMINATION OF EMPLOYMENT — CONTRACTUAL NOTICE GIVEN — ALLEGATION OF BREACH OF INTERNAL LAWS AND NATURAL JUSTICE BY UNIVERSITY — VISITORIAL JURISDICTION — WHETHER JURISDICTION OF COURT OUSTED — THE UNIVERSITY OF TECHNOLOGY, JAMAICA ACT, SS.5, 11(2).

DEFAMATION — LIBEL — ALLEGED DEFAMATORY STATEMENT MADE BY EMPLOYEE — WHETHER UNIVERSITY LIABLE — FAILURE TO PLEAD FACTS RELIED ON — CONSEQUENCES — CIVIL PROCEDURE RULES (CPR) 8.9 (1) & 8.9 (A)

Mcdonald-Bishop, J
1

The claimant, Alexander Okuonghae, was employed to the defendant, the University of Technology, Jamaica, as a Laboratory Technologist in its Faculty of Engineering and Computing for the period 13 August 2001 to September 5, 2009.

2

The claimant's written contract of service expressly provided, inter alia , that it could be terminated without cause by either party giving the other party one month's notice in writing. Over the course of the claimant's employment, disciplinary proceedings were brought against him following several incidents. On 4 August 2009, the defendant gave the claimant one month's notice of the termination of his employment contract to take effect on 5 September 2009.

3

Grounds for the termination of his contract were expressed thus:

‘In accordance with Ordinance 1999/15: Staff Redundancy, discipline, dismissal, Removal and Grievance Procedures disciplinary charges have been brought against you and are classified as major offences. Given that this is the second occasion in which you have made inciting and unsubstantiated allegations about the University and its Officers, a decision has been taken to terminate your employment on the following grounds:

Misconduct unbecoming of an employee of this institution

1. False statements made by you about Officers of the University which can bring the name of the University into disrepute;

2. Gross insubordination; and

3. Provocative and inciting statements made by you in correspondence dated June 29, 2009 captioned: ‘Head of School of Engineering’ which could lead to disorder.

In keeping with the requirements of your contract, kindly regard this as one month's notice of the termination of your employment with the University effective September 05, 2009…’

4

By the terms of the letter, he was not required to be present at work for the notice period and was given his emoluments for the period, among other things. He, therefore, received pay in lieu of notice.

5

By way of a Further Amended Claim Form and Further Amended Particulars of Claim filed on 19 December 19 and further amended by the court at the start of trial, the claimant seeks relief from the defendant as follows:

  • “1. Damages for wrongful, and/orunlawful, and/or unjustified, and/or unfair dismissal;

  • 2. Damages for breach and/or failure to observe principles of fairness, reasonableness and natural justice arising from the discrimination, bias, unfair treatment and victimization of the Claimant by servants, agents and/or employees of the Defendant during the period 2001 to 2009;

  • 3. Damages for breach of contract of employment by failing, refusing and/or frustrating the process of evaluation of the Claimant by servants, agents and/or employees of the Defendant and thereby depriving the Claimant of consideration for promotion to the position of Technical Officer-Mechanical/Chemical in the faculty or to any other position despite his sterling performance and contrary to the ordinances and/or established policies and practices of the Defendant;

  • 4. Damages for mental and emotional torment and suffering suffered by the Claimant resulting from the unfair and malicious conduct and actions of the servants, agents and/or employees of the Defendant;

  • 5. Damages for negligence, failure and/or refusal to ensure that efficiency and good order was maintained and/or steps taken as were necessary and/or reasonable to safeguard the interests of the Defendant in the circumstances where the Claimant had invoked the special appeals process to the President of the Defendant regarding financial aid and barring the Claimant from entering the Defendant's Campus, in his pursuit of the Master of Philosophy in Pharmaceutics course.

  • 6. Damages for wrongfully, unlawfully, unjustifiably and unfairly de-registering the Claimant from the Master of Philosophy in Pharmaceutics Programme.

  • 7. Legal Costs paid to Aisha N.M. Mulendwe, Attorney-at-Law in the sum of $ 108,000.00 and continuing.

  • 8. Damages for deprivation of health insurance and other benefits enjoyed by the Claimant;

  • 9. Damages for libel arising from the Defendant's servant, agent and/or employee publishing and circulating false damming statements contained in correspondence dated April 15, 2009 namely: ‘has a history of violence on this campus’, causing the Claimant to be wrongly and unfairly punished by being suspended pending a hearing that was ever convened, and causing other professionals in his faculty to distance themselves from him, making the communication and working environment very untenable, uncomfortable and at times unproductive.

  • 10. Damages for loss of earning and future earnings and/or alternative employment commensurate to the Claimant's qualifications and work experience, and/or resulting, mental anguish, pain and suffering;

  • 11. Aggravated damages and/or exemplary damages;

  • 12. Interest on general damages at the rate of 6% per annum;

  • 13. Interest on special damages at the rate of 29.99% per annum it being the rate charged by the Claimant's banker, the National Commercial Bank Jamaica Limited;

  • 14. Costs.’

6

By written submissions filed, the claimant, through his attorney-at-law, Ms. Mulendwe, indicated that he no longer wished to pursue the following remedies:

  • a) Damages for unfair and unjustifiable dismissal;

  • b) damages for mental and emotional torment and suffering suffered by the Claimant resulting from the unfair and malicious conduct and actions of the servants, agents and/or employees of the Defendant;

  • c) Legal Costs paid to Aisha N.M. Mulendwe, Attorney-at-Law in the sum of $108,000.00 and continuing;

  • d) Damages for deprivation of health insurance and other benefits enjoyed by the Claimant.

7

In the light of this abandonment of some aspects of the claim, the issues for resolution between the parties have been slightly reduced. Before examining the substance of the claim, however, it is necessary to resolve an issue raised by the defendant in response to aspects of the claimant's statement of case. Jurisdictional challenge: whether the court has jurisdiction to deal with aspects of the claim relating to the defendant's internal policies and procedures

8

The primary contention of the defendant in defence of the claim is that pursuant to section 5 of the University of Technology, JamaicaAct, the Governor -General of Jamaica is the Visitor of the defendant. By virtue of that, the Governor — General, as Visitor, has exclusive jurisdiction in relation to any dispute relating to the internal rules and procedures of thedefendant. Consequently, the court does not have jurisdiction to hear any dispute concerning the defendant's policies, practices, or ordinances.

9

This point is of critical importance in disposing of the claim and so it warrants primacy of consideration before any other issue is examined. This is so because most of the damages sought from the defendant do relate to allegations of breaches of the defendant's internal procedures and policies. The court must, therefore, first dispense with the question as to its jurisdiction to deal with the claim.

Visitorial jurisdiction

10

The University of Technology, Jamaica Act, section 5 provides:

“5. The Governor-General or the person for the time being performing the role and functions of Governor-General shall be the Visitor of the University, who in the exercise of the visitorial authority, may, from time to time, and in such manner as he shall think fit

(a) direct an inspection of the University, its buildingslaboratories and general work, equipment and of the examination, teaching and other activities of the University by such person or persons as he may appoint in that behalf; and

(b) hear matters referred to him by the Council.’

11

The First Schedule to the said Act in section 11 (2) provides:

‘The Council of the University shall have general control over the conduct of the affairs of the University and shall have all other functions as may be conferred upon it by the Statues.’

12

It is the contention of the defendant, as articulated by Mr. Goffe on its behalf, that where visitorial jurisdiction exists, a long line of authority supports the position that such a jurisdiction is exclusive and not concurrent with the court's jurisdiction. He cited in support of this contention Patel v University of Bradford Senate and Another (‘ Patel’) [1978] 3 ALL ER 841, 846 and R v Dunsheath, ex parte Meredith (‘ Meredith’) [1950] 2 ALL ER 741, 743.

13

In Meredith, it was established as reflected in the headnotes that:

‘Where there is a Visitor of a corporate body, the court will not interfere in any matter within the Visitor's jurisdiction, and any question of a domestic nature is essentially one for the Visitor whose decision upon it is final. These principles apply equally to a corporation set up by Act of Parliament as to corporation established by charter, equally to a college as to a university.’

Similarly, In Patel, Megarry V-C stated:

‘As was...

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8 cases
  • Duke St John-Paull Foote v University of Technology Jamaica and Another
    • Jamaica
    • Court of Appeal (Jamaica)
    • 31 Julio 2015
    ...53 Lastly, I must mention the decision of McDonald-Bishop J (as she then was) in Okuonghae v University of Technology, Jamaica [2014] JMSC Civ 138. In that case, the claimant, who was formerly employed to the university as a laboratory technologist, claimed damages against the university fo......
  • Dr O'Neil Lynch v Minister of Labour and Social Security
    • Jamaica
    • Court of Appeal (Jamaica)
    • 8 Octubre 2021
    ...jurisdiction of the visitor. 24 The appellant relied heavily on the cases of Alexander Okuonghae v University of Technology, Jamaica [2014] JMSC Civ 138 (‘ Okuonghae’) and Thomas in support of this 25 Mr Jones submitted that the case of Okuonghae could be distinguished, as the issue in that......
  • L.D.T. Services Ltd and Another v Twin Acres Development Company Ltd and Others
    • Jamaica
    • Supreme Court (Jamaica)
    • 29 Julio 2016
    ...This was the position taken in the decision of the Jamaican Court of Appeal in Alexander Okuonghae v University of Technology, Jamaica [2014] JMSC Civ. 138 at paragraphs 74–78. In any event my acceptance of the conclusions of Mr Robinson and the absence of supporting evidence means that the......
  • DR. O'Neil Lynch v Minister of Labour and Social Security
    • Jamaica
    • Supreme Court (Jamaica)
    • 31 Mayo 2019
    ...and that the court has no concurrent jurisdiction. They also relied on the case of Okuonghae v University of Technology, Jamaica [2014] JMSC Civ. 138 to reinforce the point that where there is an issue of unfair dismissal of an employee from a university which has provisions for a visitor, ......
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