Jackson (St. George), Andrew Jackson (on behalf of all themselves and all the other members of the Special Constabulary Force Association) and Joel Betty v Attorney General

• Jurisdiction: Jamaica
• Judge: ANDERSON J.
• Judgment Date: 04 August 2010
• Judgment citation (vLex): [2010] 8 JJC 0401
• Court: Supreme Court (Jamaica)
• Date: 04 August 2010

THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2009 HCV 02775

BETWEEN

ST. GEORGE JACKSON, ANDREW JACKSON (ON BEHALF OF ALL THEMSELVES AND ALL THE OTHER MEMBERS OF THE SPECIAL CONSTABULARY FORCE ASSOCIATION)

1 ^ST CLAIMANT

AND

JOEL BETTY

2 ^ND CLAIMANT

AND

ATTORNEY GENERAL

DEFENDANT

Application for Declaratory Relief; Whether jurisdiction lies; Whether discretion should be exercised to grant declaration; Principles applicable to decision to grant declaration; CPR Rule 8.6. Doctrine of Executive Necessity — whether applicable.

CIVIL PROCEDURE - Declaratory relief - Application for - Whether jurisdiction lies - Whether discretion should be exercised to grant declaration - Principles applicable to decision to grant declaration - Civil Procedure Rules, Rule 8.6 - Doctrine of Necessity - Whether applicable

ANDERSON J

1 1). This was the hearing of a Fixed Date Claim Form (FDCF) dated and filed the 29 ^th of May 2009. The claim was filed by the Island Special Constabulary Force Association (ISCFA) and the nominal claimants are Special Sergeant George Jackson, the General Secretary of the ISCFA, ("Jackson") and Cpl. Joel Betty a member of the said Association. The first claimant sues as representative of the ISCFA and the second on his own behalf as a member of the ISCFA.

2 2). The FDCF, as amended on June 22, 2009, seeks the following remedies:-

• 1. A declaration that the Heads of Agreement entered into between the Claimant and the l ^st Defendant on the 3 ^rd of October 2008 for the contract period April 1, 2008 to March 31, 2010 is binding on the parties thereto:

• 2. A declaration that all amounts due and payable and which remain unpaid to the members of the Claimant Association under the Heads of Agreement is (sic) properly owed and is to be paid pursuant to the terms of the said Heads of Agreement;

• 3. A declaration that the amounts due and owing to the members of the Claimant Association is a debt owed by the Government of Jamaica to the said members of Claimant Association and interest payable thereon is to be paid at the rate that is paid on Government of Jamaica bonds;

• 4. A declaration that the actions of the 1 ^st Defendant, via its servants and or agents and or employees amounts to an unlawful deprivation of the property of the Claimant's members without adequate compensation there for;

• 5. A declaration that the actions of the 1 ^st Defendant in breach of the Heads of Agreement is in contravention of Article 18 of the Constitution of Jamaica;

• 6. Costs;

• 7. Any other Order as this Honourable Court deems fit.

3 3). The claim is supported by affidavits of Jackson dated 29 ^th May 2009 and 22 ^nd June 2009, and an affidavit by the second claimant also dated 22 ^nd June 2009.

4 4). The ISCFA is a statutory body, established pursuant to Section 26 (1) of the Constables (Special) Act, to deal with matters affecting the general welfare and efficiency of Special Constable. The 1 ^st Defendant, Government of Jamaica is the employers of the 2 ^nd Claimant and the 3 ^rd Defendant is the Minister responsible for making of all necessary regulations and orders and for promoting the organization, training and discipline and payment of wages for the Island Special Constabulary Force. This minister was a signatory of the agreement between the Association and the Government. The Ministry of National Security is the Ministry to which the members of the Association are employed and that Minister was also a signatory to the Heads of Agreement referred to above. The Attorney General is joined pursuant to the Crown Proceedings Act.

5 5). The Evidence

6 The evidence upon which the application is based is contained in the affidavits of George Jackson and Cpl. Joel Betty. The claimants allege that after the ISCFA had held talks with State Minister, Dwight Nelson, then State Minister in the Ministry of Finance and the Public Service, and the Minister then responsible for the Public Service, it accepted the terms of an offer with respect to wages and fringe benefits. The agreement by paragraph 1 of its terms covered the period April 1, 2008 to March 31, 2010. It was alleged that pursuant to the acceptance by the Association of the offer made by the Government of Jamaica, the Association entered into an agreement, characterized as a "Heads of Agreement", between the Association and the Government. The contract was signed for the ISCFA by then Special Corporal George Jackson and other members of the claimant association. For and on behalf of the Government of Jamaica, the signatories were the Honourable Audley Shaw, Minister of Finance and the Public Service, Minister Dwight Nelson, Minister of State in that Ministry; Honourable Trevor McMillan, then Minister of National Security, the Financial Secretary and Mr. Gilbert Scott, then Permanent Secretary in the Ministry of National Security. Those essential facts are not disputed. The evidence from the defendant is contained in the affidavits of Minister Nelson referred to below, and does not deny the main averments of the claimants.

7 6) Submissions for the Claimant

8 Mrs. Samuels-Brown, who appeared as counsel for the Association, submitted that the claimants were entitled to seek the assistance of the court by way of the various declarations sought. The basis for seeking the declarations was the Heads of Agreement which had been signed between the parties. In essence, the Heads of Agreement provided the terms of employment and conditions of work which would be applicable to members of the Association during the contract period.

9 7.) According to the Heads of Agreement, the revised salary scale of the claimant's members was to be increased by fifteen percent (15%) from April 1, 2008 and thereafter by 7% on April 1, 2009. It is the evidence as contained in the first affidavit of George Jackson, that the agreement was faithfully adhered to during the period April 1, 2008 to March 31, 2009. It is averred that the members of the Association have relied upon the terms of the agreement, which they claim has given rise to a legitimate expectation of the fulfillment of its terms, and have acted to their detriment ion reliance on the terms of he Heads of Agreement, by contracting mortgagees or car loans, the repayment of which is now being jeopardized by the defendant's failure to fulfill their obligations under the Heads of Agreement. In his affidavit, the affiant depones that the members of the Association have been deprived of the increased salaries and that this in breach of their property rights under the Jamaica Constitution.

10 8). According to the Jackson affidavit, the Association received a letter from Minister Nelson dated April 3, 2009 which included a document from the Economic Management Division of the finance Ministry. This document which is exhibited along with Minister Nelson's affidavit addressed the possible consequences of the government making all payments due as scheduled for fiscal year 2009/2010. The document is dated April 3, 2009 projected that if all the due sums were paid, wages would account for 53% of all tax revenue, and amount to about 11.3% of GDP, this compared to "international norm of about 8% to 9% of GDP." The document continued:

''The Government of Jamaica has to exercise fiscal prudence and contain the wage bill to sustainable levels. Within this context the agreed 7% increase and arrears/back pay are unaffordable and the Government of Jamaica is not in a position to make those payment. If the wage bill were to continue on the trend depicted above, the Government of Jamaica runs the risk of having its credit ratings downgraded with adverse consequential effect on interest and exchange rate, which would further feed into increasing the deficit thereby crowding out much needed spending on social and infrastructural projects."

11 9). In a letter in response, dated April 9, 2009, the claimant through its chairman wrote to Minister Nelson in the following terms:

12 Dear Sir,

13 On Wednesday April 8, 2009 an all Island Delegates' Meeting of the Special Constabulary Force Association was convened at Harman Barracks to consider a response to the document dated April 3, 2009, sent to us by you.

14 Of the eighty six delegates, fifty eight (58) were present thus establishing a quorum of two thirds majority.

15 The question of a waiver of payments due April 1, 2009 as per 2008 – 2010 Heads of Agreement was put to the delegates. After Lengthy deliberations the delegates unanimously mandated the Central Committee to:

• 1. abide by the existing terms of the signed Agreement;

• 2. ensure that the value of the negotiated terms and conditions of the Heads of Agreement is maintained.

• 3. There can be no re-negotiation of the terms of the said Agreement

• 4. Any waiving of payment must be presented by the Ministry with suitable options for due consideration.

16 The Central Committee awaits your response, so that meaningful dialogue may be engaged to ensure amicable solutions and speedy closure to this matter.

17 10). A further letter was sent by the Association on April 28, 2009 to the Minister of Finance, the Hon. Audley Shaw. I also set out the terms of that letter:

18 Dear Sir,

19 REQUEST FOR URGENT MEETING IN RESPECT TO WON PAYMENT OF INCREASES DUE ON DALARIES AND ALLOWANCES AS PER SIGNED HEADS OF AGREEMENT 2009 – 2010

20 The Association and our membership note that, notwithstanding the signed Heads of Agreement between the Ministry of Finance and the Public Service and the Association, there has been a non-payment of increases due on salaries and allowances with effect from April 1, 2009.

21 We believe that scant regard has been shown to us as, to date, we have not been...