Joel Lewis v Clifford Chambers

• Jurisdiction: Jamaica
• Judge: Straw, J.A.,Brown, J.A.,Laing, J.A.
• Judgment Date: 04 April 2025
• Neutral Citation: JM 2025 CA 24
• Court: Court of Appeal (Jamaica)
• Year: 2025
• Docket Number: Suit No.: COA2024CV00003

Joel Lewis

and

Clifford Chambers

Straw, J.A.; Brown, J.A.; Laing, J.A.

Suit No.: COA2024CV00003

Court of Appeal

Appearances:

Hugh Wildman and Shemar Bryan instructed by Hugh Wildman & Company for the appellant.

Mrs. Kristina Jones instructed by the Director of State Proceedings for the respondent.

JUDGMENT OF THE COURT

Straw, J.A.

1 I have read, in draft, the judgment of my learned brother Laing, J.A. and agree with his reasoning and conclusion.

Brown, J.A.

2 I too have read the draft judgment of Laing, J.A. and agree.

3 By notice and grounds of appeal, filed on 3 Jan 2024, the appellant appeals against the orders of T Carr, J. (‘the learned judge’) made on 21 July 2023 refusing the appellant's notice of application for leave to apply for judicial review (‘the order’).

BACKGROUND

Laing, J.A.

4 The appellant enlisted in the Jamaica Constabulary Force (‘JCF’) on 29 November 2010. He served at the rank of Constable for 13 years. A member of the public complained that he had performed certain acts of dishonesty in a private transaction between them (‘the allegations’). Based on the allegations, in June 2018, he was charged with several offences of dishonesty in connection with a stolen motor vehicle and appeared before the Parish Court in Saint Catherine. The prosecution offered no further evidence and, on 18 February 2019, he was discharged on all counts for which he had been placed before the court.

5 The appellant was due for re-enlistment on 28 November 2020 and submitted an application for re-enlistment dated 16 June 2020. He was advised, by a letter dated 17 November 2020, that his application for re-enlistment was not recommended to the Commissioner of Police (‘the COP’) on grounds related to the allegations which formed the basis for the offences in respect of which he had been discharged. The appellant's attorney-at-law responded by letter dated 1 December 2020. The appellant received a letter, dated 4 November 2021, which declared that “[t]his supercedes [sic] notice dated November 17, 2020”. It advised him that the COP reviewed the recommendation and refused his re-enlistment on grounds that mirrored those in the letter dated 17 November 2020 and the letter dated 4 November 2021.

6 The appellant's attorney-at-law made representations to the JCF, which resulted in the appellant meeting with the COP on 27 July 2022. The unchallenged evidence of the appellant is that at that meeting, the COP stated that if the charges which were laid against the appellant in 2018 were the only charges against him, he had no need to worry.

7 By letter dated 12 September 2022 (‘the Letter’), the respondent, the Assistant Commissioner of Police for Area 1, advised the appellant that he was directed by the COP to inform him that his application for re-enlistment was not approved. It is this refusal not to re-enlist him which caused the appellant to seek permission to apply for judicial review, which resulted in the order and this appeal.

THE GROUNDS

8 The grounds of appeal are:

• “1. The Learned Trial Judge failed to appreciate that on the evidence before her, there was nothing to show that the Commissioner of Police had in fact, taken a decision not to re-enlist the Appellant for a further period of five years as a member of the Jamaica Constabulary Force.

• 2. The Learned Trial Judge failed to appreciate that the statement attributed to the Commissioner of Police made to the Appellant, which remained unchallenged, that if the charges of which the Appellant had been acquitted were the only thing against him, he had nothing to fear, clearly indicates that the Commissioner of Police had not taken any steps in failing to re-enlist the Appellant to be a member of the Jamaica Constabulary Force.

• 3. The Learned Trial Judge failed to appreciate that in light of that statement, there is nothing to indicate that the Commissioner of Police had delegated his powers to the Respondent to inform the Appellant that he was no longer re-enlisted to be a member of the Jamaica Constabulary Force.

• 4. The Learned Trial Judge failed to appreciate that in exercising his powers under SECTION 5 of the Jamaica Constabulary Force Act, the Commissioner of Police had to act fairly in informing the Appellant of the reasons why he was no longer being re-enlisted to be a member of the Jamaica Constabulary Force, and on the evidence there was nothing to show that the Commissioner of Police had so informed him.

• 5. The Learned Trial Judge failed to appreciate that the reasons given to the Appellant by the Respondent, that is, the purported charges that he was acquitted of, could not properly be regarded as reasons for refusing to re-enlist the Appellant as a member of the Jamaica Constabulary Force, having regard to the clear language of SECTION 37 of the Jamaica Constabulary Force Regulations.

• 6. The Learned Trial Judge failed to appreciate that on the evidence, there is nothing to show that the Commissioner of Police had rejected the Appellant's application to be re-enlisted for a further period of five years in the Jamaica Constabulary Force.” (Bold as in the original)

9 The various grounds of appeal can conveniently be grouped under the following issues:

• (1) Whether the respondent is a proper party to the claim;

• (2 Whether the COP made a decision not to re-enlist the appellant (grounds 1, 2 and 6);

• (3) Whether the COP's decision was properly communicated to the appellant (grounds 3 and 4); and

• (4) Whether in exercising his discretion not to re-enlist the appellant, the COP could rely on the charges, especially in light of the unchallenged evidence that the COP had reassured the appellant that if the dismissed charges were the only thing against him, he had nothing to fear (ground 5).

10 Whether the respondent is a proper party to the claim is an issue that is determinative of the appeal. This issue was introduced by Mrs. Jones in her response. The issue is relevant because the appellant argued that the COP did not delegate the authority to the respondent to communicate the refusal to re-enlist to the appellant, and consequently, he had no authority to do so. The appellant advanced the proposition that the respondent was a proper party because, without authority, he communicated the fact of the COP's refusal to re-enlist the appellant to him. It is, therefore, necessary for the court to interrogate whether this communication by the respondent provides a proper legal basis for the claim to be brought against him.

11 Although this issue of whether the respondent is a proper party to the claim may be determinative of the appeal, the second issue of whether he took a decision not to re-enlist the appellant is raised tangentially and will be addressed insofar as it supports the determination of the first issue.

12 The fourth issue raised by ground 5 is of intellectual interest only, and, in any event, it would not be appropriate for this court to engage in a robust analysis thereof.

WHETHER THE RESPONDENT IS A PROPER PARTY TO THE CLAIM

THE APPELLANT'S SUBMISSIONS

13 Grounds 3 and 4, as argued by Mr. Wildman, raised the issue of whether the respondent was empowered with the requisite authority to act on the COP's directions and to advise the appellant of the COP's decision not to re-enlist him. Mr. Wildman argued that the manner of the communication of the COP's decision to the appellant was a matter that was reviewable by the court, and there was no evidence that the COP had delegated his power to communicate his decision and by virtue of that delegation to the respondent, the respondent had the appropriate power.

14 Counsel argued that the respondent substituted himself for the COP and submitted that nowhere in the Constabulary Force Act (‘the Act’) was the respondent, as an Assistant Commissioner of Police, empowered to act on behalf of the COP. He further argued that this action by the respondent of communicating the decision amounted to usurpation of the powers of the COP and was in breach of the maxim delegatus non potest delegare (a delegate cannot delegate). He relied on a statement from the learned authors of HWR Wade and CF Forsythe, 11th Edition, page 260, as follows:

“In the case of statutory powers, the important question is whether, on a true construction of the Act, it is intended that a power conferred upon A may be exercised on A's authority by B. The maxim merely indicates that this is not normally allowed. For this purpose, no distinction need be drawn between delegation and agency.”

15 Mr. Wildman submitted that the fact that the respondent was the person who communicated to the appellant the COP's refusal to re-enlist him provided the basis for the respondent, having inserted himself as an active participant in the process, to be named as a party to the application. In para. 19 of his written submissions, Mr. Wildman encapsulated the appellant's submission as follows:

“… there is nothing in the language of SECTION 5 OF THE CONSTABULARY FORCE ACT, or any other section of the act, that one could construe that the Assistant Commissioner of Police is permitted to discharge anyone from the Jamaica Constabulary Force. The Respondent, as the Assistant Commissioner of Police, has clearly exceeded his authority and committed jurisdictional error as stated by Lord Reed in ANISMINIC LTD v. FOREIGN COMPENSATION COMMISSION[1969] 2 A.C. 147.” (Bold as in the original)

THE RESPONDENT'S SUBMISSION

16 The respondent's response to grounds 3 and 4 was premised on the assertion that there was no evidence that the COP's powers were delegated, usurped, or exercised by the respondent. It was emphasised that the respondent did not purport to make any decision in his own right related to the appellant's re-enlistment. It was argued that the respondent was merely a conduit acting on the instructions of the COP.

17 Predicated on these submissions, it was...