Lloyd v The Jamaica Defence Board et Al

• Jurisdiction: Jamaica
• Judge: Zacca, J.A.,Carey, J.A.,White J.A.
• Judgment Date: 19 June 1981
• Neutral Citation: JM 1981 CA 10
• Docket Number: Civil Appeal No. 59 of 1978
• Court: Court of Appeal (Jamaica)
• Date: 19 June 1981

Court of Appeal

Zacca, J.A.; Carey, J.A.; White, J.A.

Civil Appeal No. 59 of 1978

Lloyd

and

The Jamaica Defence Board et al

Appearances:

Dr. Lloyd Barnett for the appellant.

Mr. R. Langrin for the respondents.

Natural Justice - Breach — Effect of Breach — Public Authorities Protection Act, s. 2.

Facts: The appellant was a lieutenant colonel in the Jamaican Defence Force. By letter dated April 27, 1977 the appellant was called upon to retire. He tendered resignation by letter dated April 28, 1977. On November 20, 1978 appellant filed a writ against respondents claiming a declaration that his commission had not been lawfully terminated or retired. The Public Authorities Protection Act, s. 2(1) provides that such proceedings should be instituted within one year after the act complained of. The appellant sought to establish that the Defence Board acted contrary to the rules of Natural Justice. The question was whether breaches of the rules of Natural Justice prevented the operation of the protection provided by the Public Authorities Protection Act, s. 2(1).

Held: Appeal dismissed.

Zacca, J.A.

1 This is an appeal against an order of Rowe, J. (as he then was) striking out the appellant's Statement of Claim as disclosing no cause of action on the ground that the acts complained of by the appellant occurred more than twelve months before the issue of the writ. Rowe, J. held that the action was statute barred by the provisions of Section 2 of the Public Authorities Protection Act.

2 The appellant was a Lieutenant Colonel in the Jamaica Defence Force. By letter dated April 27, 1977, signed by the Secretary of the Defence Board, the appellant was called on to retire under Regulation 10 of the Defence (Officers) Regulations, 1962. On receipt of this letter the appellant tendered his resignation from his commission by letter dated April 28, 1977.

3 On November 20, 1978, the appellant filed a writ against all three respondents claiming a declaration that his commission had not been lawfully terminated or retired. The appellant's Statement of Claim which was filed on the same day alleged:

• “(1) The plaintiff has been a member of the Jamaica Defence Force for over 21 years.

• (2) On April 27, 1977 and at all material times he was of the rank of Lieutenant Colonel, holding a commission granted him for an indefinite period.

• (6) On April 27, 1977 the plaintiff was instructed to attend the office of the Honourable Keble Munn, M.P. then Minister responsible for Defence and on attending there, he was summoned before a group consisting of the following persons:

  Hon. Keble Munn, Minister of National Security.

  Hon. Carl Rattray, Attorney-General and Minister of Justice.

  General Rudolph Green, Chief of Staff of the Jamaica-Defence Board,

  Mr. Roy McGann, Parliamentary Secretary, National Security and Justice.

  Mr. Douglas Collins, then Permanent Secretary in the Ministry of National Security.

  Professor M.G. Smith, and a female whose name is unknown.

• (7) The plaintiff was then interrogated by members on a variety of matters.

• (8) Later that day the plaintiff received a letter under the hand of the Secretary of the Defence Board dated April 27, 1977 which called on him to: retire under Regulation 10 of the Defence (Officers) Regulations, 1962 which deals with compulsory retirement.

• (9) The plaintiff contends that in acting as aforesaid the Defence Board and/or its Secretary in issuing the said letter of April 27, 1977 acted contrary to the provisions of the Defence Act and in breach of the rules of natural justice, and that accordingly the plaintiff's commission has not been lawfully terminated or retired.”

4 It was clear from the allegations and particulars set out in the Statement of Claim that the plaintiff was seeking to establish that the Defence Board was not properly constituted and also it acted contrary to the rules of natural justice.

5 The defendants then entered a conditional appearance and took out a summons to strike out the plaintiff's claim. It is being contended by the respondents that the act complained of by the plaintiff occurred on April 27, 1977. The plaintiff was called upon to retire under Regulation 10 of the Defence (Officers) Regulations and therefore the first defendant was doing an act in pursuance, or execution, or intended execution of a public duty conferred upon the Defence Board by the Defence Act and Regulations made thereunder. It is further contended that the writ was filed more than one year after the act complained of and therefore the defendants were entitled to rely on Section 2(1) of the Public Authorities Protection Act. The learned judge held that the defendants could rely on the Public Authorities Protection Act and struck out the plaintiff's claim.

6 On the hearing of the appeal Dr. Barnett for the appellant submitted that it is being alleged in the Statement of Claim that the defendants acted contrary to the rules of natural justice. Since a breach of the rules of natural justice would result in the action of the Defence Board being declared a nullity, the defendants could not seek the protection of the Act. This is so, he argued, because a breach of the rules of natural justice is analogous to fraud or malice in that an allegation of fraud or malice would result in a nullity and a public official, acting in the exercise of a statutory or other authority, is not protected, if he acted maliciously or fraudulently. See Halsbury's Statutes of England, 2nd Edition, Vol. 18, page 752.

7 Dr. Barnett relied on the case of Anisminic Ltd. v. Foreign Compensation Commission[1969] 2 A.C. 147 for the proposition that if an act done in bad faith results in a nullity and the protection of the act is not available, it follows that for a breach of natural justice which would also result in a nullity, the protection of the Act does not avail.

8 Section 2(1) of the Public Authorities Protection Act provides:

“Where any actions, prosecution, or other proceeding, is commenced against any person for any act done in pursuance or execution, or intended execution, of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty, or authority, the following provisions shall have effect –

• (a) the action, prosecution, or proceeding, shall not lie or be instituted unless it is commenced within one year next after the act, neglect or default complained of, in case of continuance of injury or damage, within one year next after the ceasing thereof.”

9 These provisions are similar to those contained in the corresponding U.K. Act of 1893.

10 The Jamaica Defence Board is established by Section 9 of the Defence Act. Section 16 of the Act provides for the making of Regulations with respect to the conditions and terms of service of officers of the Defence Force. Under these sections regulations were promulgated on September 25, 1962 in the Defence (Officers) Regulations, 1962. Regulation 10 provides:

• “10. (1) An officer shall not be called upon to retire his commission by the Defence Board.

• (2) An officer may at any time be called upon by the Defence Board to retire or resign his commission for misconduct or for reasons other than misconduct.

• (3) In the event of an officer failing to retire or resign when called upon to do so under this regulation, his commission shall be terminated.”

11 In the Anisminic case (supra) at page 171, Lord Reid states:

“It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word “jurisdiction” has been used in a very vide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made, a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some questions which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive.”

12 The proposition that acts of public officials are protected by the Act in any case where it can be shown that the trial would result in a nullity is untenable. Although the trial may result in a nullity for breaches of the rules of natural justice the act complained of must not have occurred more than one year before the action commences, unless it can be shown that the public official acted fraudulently or maliciously.

13 If, as in the instant case, it is being alleged that there was a breach of the rules of natural justice, then the action must have commenced within the year of the act complained of, this date being April 27, 1977. The writ being filed on November 29, 1978, the respondents are entitled to the protection of the Act. The defendants made it quite clear that if the action proceeded they would be relying on the protection of the Act. It is, therefore, open to the trial judge to strike out the Statement of Claim as disclosing no reasonable cause of action, Riches v. Director of Public Prosecutions [1973] 2 All E.R. 935.

14 It is for these reasons that I concurred in the dismissal of this appeal on April 9, 1981 with costs of...