Byfield v Allen (3 Judgements - Graham-perkins; Waddington; Luckhoo)
| Jurisdiction | Jamaica |
| Judge | Graham-Perkins, J.A.,Waddington, J.A.,Luckhoo, J.A. |
| Judgment Date | 12 June 1970 |
| Neutral Citation | JM 1970 CA 19 |
| Docket Number | Civil Appeal No. 16 of 1965 |
| Court | Court of Appeal (Jamaica) |
| Date | 12 June 1970 |
Court of Appeal
Waddington, J.A.; Luckhoo, J.A.; Graham-Perkins, J.A. (Ag.)
Civil Appeal No. 16 of 1965
Mr. V.O. Blake, Q.C., Mr. David Coore, Q.C., and Mr. R.N.A. Henriques for appellant.
Dr. E.H. Watkins, Solicitor General, Mr. W.D. Marsh, Q.C., and Mrs. E.A. Sang for respondent.
Constitutional Law - Civil rights
Graham-Perkins, J.A. (Ag.): On the 3 rd November, 1962 there appeared in the Daily Gleaner, at the instance of the Kingston School Board (hereinafter called “the Board”) and advertisement inviting applications for the post of head teacher and assistant staff of the Trench Town Senior School, a new school scheduled to come into existence on the 1 st January, 1963. The publication of this advertisement was the result of a letter dated 29 th October 1962 addressed to the secretary of the Board by the Permanent Secretary in the Ministry of Education. Among other things this letter contained a request that the names of the applicants he submitted to the Ministry prior to the meeting of the Board for the purpose of selecting a head teacher. The Ministry also asked to be advised in advance of the date proposed for interviewing applicants so as to ensure that one of its officers would be available to advise the Board. By a letter dated the 19 th November 1962, the Board advised the Ministry that applications for the post of head teacher had been received from four persons named, one of whom was the appellant.
On the 24 th November 1962, the four applicants were interviewed by the Board in the presence of officers of the Ministry who took an active part in those interviews. The Board, having concluded that the appellant was the most suitable of the applicants, on the same day wrote the Permanent Secretary advising that the appellant had been appointed “as head teacher …. Subject to your approval, to assume duties in January 1963.”
On the 11 th December 1962 the Permanent Secretary wrote the Board as follows:
“With reference to your letter of the 24 th November 1962, I have been asked by the Minister to say that the policy he proposes to follow is to request that in the case of Heads of Senior Schools, two or three names should be submitted to him from which a selection will be made.”
It would appear that the Board formed the view that this request offended against their authority and dignity, and, accordingly, resolved not to comply therewith. Instead, an interview was sought and obtained with the respondent. As this interview, which took place on the 11 th January 1963, the Board was represented by its Chairman, Mr. E.B. Johnson, and the Rev. Rhynie, among others. Present with the respondent were officers of his Ministry. The respondent for the first time disclosed his hope that all senior schools would in time become comprehensive schools in which event, he observed, a teacher qualified to be the head of a senior school would not necessarily be qualified to head a comprehensive school.
On the 18 th January 1963, the respondent wrote to the Board as follows:
“Dear Sir,
I thank you very much for conferring with me recently on the question of the appointment of a Head for the Trench Town School. I wish to place on record that my confidence in you has always been high and has in no way diminished.
I am, however, unable to accept the recommendation to appoint Mr. Byfield as Head of the Trench Town Senior School, and another offer, which is in effect a promotion, has been unofficially made to him.
It is open to the Board to advertise again, but I would call attention to the crisis that has arisen in the Corporate Area, owing to the fact that very large numbers of children have been unable to secure admission to primary schools, and that the very early appointment of a Head for the Trench Town Senior School would greatly assist in relieving the situation.
I therefore do not make re-advertising a requirement and if the Board agrees to submit two or three names, I will give the matter prompt consideration.
Yours truly,
E.L. Allen
Minister of Education”
This is, in part, the background against which the appellant on the 10 th June 1963 commenced proceedings against the respondent. After setting out the matters hereinbefore mentioned and relating to the advertisement, his interview, and appointment by the Board, and the respondent's refusal, in purported exercise of his powers under Article 38 of the Education Code, to approve the appointment, the appellant alleged in paragraph 7 of his Statement of Claim that:
“The (appellant) is, and was at all material times, known by the (respondent) to be a member of the People's National Party, and to hold political opinions appropriate to such membership.”
By paragraph 8 the appellant alleged:
“The (respondent's) refusal to approve the appointment of the (appellant) …. is attributable wholly or mainly to the (appellant's) political opinions…, and amounts to discriminatory treatment within the meaning of “section 24” of the Constitution of Jamaica.”
and by paragraph 9 he alleged:
“By virtue of the said discriminatory treatment the (appellant's) constitutional rights have been contravened.”
The appellant then claimed a declaration that
“The refusal of the (respondent) in his capacity as Minister of Education to confirm the appointment of the (appellant) as Headmaster of the Trench Town Senior School as set forth in a letter from the (respondent) … dated the 18 th day January 1963 is in contravention of the fundamental rights and freedoms guaranteed to the individual by “section 24(2)” of the Constitution of Jamaica.”
The appellant also claimed such further or other relief as may seem just and necessary.
In a short defence the respondent chose not to admit the allegation in paragraph 7 of the Statement of Claim. By paragraph 3 the respondent denied the allegation in paragraph 8 of the Statement of Claim and continued:
“If, which is not admitted, the (respondent) refused to approve the appointment of the (appellant) such refusal was in lawful exercise of his powers and does not amount to discriminatory treatment within the meaning of “section 24” of the Constitution of Jamaica.”
And by paragraph 4 the respondent denied that the alleged or any constitutional rights of the (appellant) had been contravened by any action on his part.
In this state of pleading the matter came on for trial before the Full Court of the Supreme Court with Phillips, C.J. (as he then was) presiding. Small, J. and Moody, J. (as he then vas) were with him. After a trial commencing on the 24 th February 1964, and extending over a total of some twenty-four days, majority judgments were delivered on the 26 th April 1965 by Phillips, C.J. and Small, J. in favour of the respondent. Moody, J. found in favour of the appellant and awarded him damages in the sum of £2, 500 with costs. ‘
The appellant now appeals against the majority judgments and asks for the declaration claimed in the Statement of Claim and damages in the sum of £2, 500. Alternatively, he asks that judgment be entered in his favour for such reduced sum and/or other relief as to this Court seems reasonable. In the further alternative he asks for a new trial.
In his judgment Phillips, C.J. expressed himself thus:
“…. the case now resolves itself into a main issue of fact, as to whether the main reason given by the (respondent) for refusing to approve the appointment was because he intended the school become a comprehensive school or whether it was because of the political opinions held by the (appellant).”
Small, J. thought that “the great question” was, “what is the real reason as indicated by the evidence why (the respondent) refused to sanction the appointment of (the appellant) as head of the proposed Trench Town Senior School? An examination of the issues raised by the pleadings reveals that the question posed by Phillips, C.J. and Small, J. was the precise of the Full Court was required to resolve. Both these learned judges came to the conclusion that the answer to the question posed was that the substantial reason operating in the respondent's mind was that the appellant did not possess the necessary qualifications to become the head or deputy head of e. comprehensive school.
The appellant has taken same nine grounds of appeal all of which seek, in one way or another, to challenge certain findings of fact in the majority judgments and certain inferences drawn therein from facts found and/or undisputed. It becomes necessary, therefore, that this Court, in its approach to the several matters raised by these grounds of appeal constantly keep in mind the three propositions enunciated by Lord Thankerton in Watt v. Thomas [1947] 1 All E.R. 582 at p.587 as follows:
“(i) Where a question of fact has been tried by a judge without a jury and there is no question of misdirection of himself by the judge, an appellate Court which is disposed to came to a different conclusion on the printed evidence should riot do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion.
(ii) The appellate Court might take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence.
(iii) The appellate Court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate Court.”
Before I proceed to an examination of the majority judgments in relation to the matters of which the...
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