Rohan Fisher v Attorney General of Jamaica
| Jurisdiction | Jamaica |
| Judge | Stamp J,Jackson-Haisley J,Pettigrew-Collins, J |
| Judgment Date | 23 September 2021 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2018 HCV 03743 |
[2021] JMFC Full 04
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
The Honourable Mr. Justice C. Stamp
The Honourable Mrs. S. Jackson-Haisley
The Honourable Mrs. A. Pettigrew-Collins
CLAIM NO. 2018 HCV 03743
and
Mr. Hugh Wildman and Ms. Faith Gordon instructed by Hugh Wildman & Company for the Claimant.
Ms. Faith Hall instructed by the Director of State Proceedings for the 1 st Defendant.
Ms. Alethia Whyte for the 2 nd Defendant.
constitutional claim — application for constitutional relief — breach of fundamental rights and freedoms — right to protection of property from compulsory acquisition — section 15 constitution of Jamaica — claimant property seized by assets recovery agency (ara) pursuant to a civil recovery order — whether the order was wrongfully made — whether the constitutional court is the proper forum having regard to the circumstances of the case-whether there is an alternative remedy available to the claimant — abuse of process — res judicata-the proceeds of crime act, sections 3, 55(1) & (2), 57 and 71
I have had the benefit of reading draft copies of both of my sisters' judgments. I concur with their reasoning and conclusions and there is nothing useful that I can add.
This matter concerns an application by way of a Fixed Date Claim Form filed on September 27, 2018 seeking the following orders:
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i. A declaration that the acquisition of the Claimant's property, situated at Lot 696, 21 st Avenue, West Cumberland, in the parish of St. Catherine registered at Volume 1323 Folio 55 of the Register Book of Titles on the 6 th September, 2017 by the 2 nd Defendant is in breach of section 15(1)(a) of the Charter of Fundamental Rights and Freedom (Constitutional Amendment) Act 2011, in that the said property was acquired by the 2 nd Defendant in breach of the Proceeds of Crime Act, 2007, and in particular, section 2 of the said Act and the Claimant has not been compensated for the said property.
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ii. A declaration that the Claimant is entitled to have the said property situated at Lot 696, 21 st Avenue, West Cumberland, in the parish of St. Catherine registered at Volume 1323 Folio 55 of the Register Book of Titles taken by the 2 nd Defendant, returned to the Claimant or in the alternative, that the Claimant be adequately compensated for the taking of the said property by the 2 nd Defendant.
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iii. Damages to be assessed for the unlawful taking of the Claimant's property situated at Lot 696, 21 st Avenue, West Cumberland, in the parish of St. Catherine registered at Volume 1323 Folio 55 of the Register Book of Titles on the 6 th September, 2017 by the 2 nd Defendant in breach of section 15(1)(a) of the Charter of Fundamental Rights and Freedom (Constitutional Amendment) Act 2011.
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iv. Such further and other relief as this Honourable Court thinks fit
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v. Costs
On the morning of trial, the claimant sought and was granted in the absence of objection, an amendment to delete section 2 of the Proceeds of Crime Act (hereinafter referred to as the POCA) and substitute section 55 as the section being relied on in the first declaration sought.
The affidavit in support of the Fixed Date Claim Form and the 2 nd Defendant's affidavit in response reveals the following facts.
In 2007 the Asset Recovery Agency (ARA) filed civil recovery proceedings in this court pursuant to section 57 of the Proceeds of Crime Act ( POCA) in relation to properties held by the Claimant, his mother, Deloris Miller and other individuals. The property in question is one of several properties against which the civil recovery proceedings were initiated and was owned by the Claimant but at the time of the application was occupied by his mother and was believed to be proceeds of the Claimant's unlawful conduct.
Neither the Claimant nor his legal representative was present at the proceedings which took place on the 30 th November 2010. The Claimant alleges that he was unaware of the proceedings and denied being served with any documents relating thereto. However, there was an Order for Service by Specified Method requiring that service on the Claimant be effected through service of the claim form and other documents on his mother. This was done on August 17, 2007 and as such the Claimant was deemed to be served by the learned judge, McIntosh J.
The learned judge proceeded to hear the matter and indicated that he was satisfied that the Claimant was served and after considering the evidence placed before him concluded that the properties sought by the ARA including the subject property were obtained through unlawful conduct. Consequently, a civil recovery order was granted on February 17, 2012 against the properties of the Claimant and the other defendants including the subject property.
The Claimant's mother appealed the decision of the learned judge. However, on May 9, 2016 the Court of Appeal dismissed this appeal. She then sought leave from the Court of Appeal to apply to the Judicial Committee of the Privy Council but this was also refused.
On the 6 th September 2017 the 2 nd Defendant took possession of the property which has now been transferred to the Commissioner of Lands and a new Certificate of Title issued. Further, a purchaser was selected for the subject property and a sale agreement prepared.
The Claimant alleges that having been made aware of the proceedings he filed an application to set aside the Civil Recovery Order on February 23, 2018. However, he discontinued this application. Thereafter, he filed this claim seeking constitutional relief on September 27, 2018.
Mr. Wildman submitted that though it is well established by the authorities of Maharaj v AG of Trinidad and Tobago (No.2) 1 and Chokolingo v AG of Trinidad and Tobago 2 that a constitutional challenge should not be used to mount a collateral attack on a final decision where there is otherwise available adequate means of redress, this principle has been somewhat ameliorated over the years by cases coming out of the Caribbean. He relied on the authorities of Bernard Coard v AG of Grenada, Jennifer Gairy and another v AG of Grenada 3 and Viralee Bailey-Latibeaudiere v the Minister of Finance and Planning, the Financial Secretary, the Public Service Commission and the Attorney General of Jamaica 4 where the courts have taken the approach that a collateral attack can be launched in certain circumstances such as where there is a breach of a constitutional right. Counsel indicated that in these cases the courts have not been constrained by the principles of Chokolingo v AG so as to prevent them from delving into constitutional issues. He asserted that instead they have sought to give effect to fundamental rights by fashioning a remedy to protect these rights. He further submitted that like the above mentioned cases the court should fashion a remedy to protect the Claimant's constitutional right.
Further, Counsel submitted that the proper alternative approach is not to appeal as was contended by the Defendants but instead to set aside a default judgement. He submitted that an appeal would only be in circumstances of a contested hearing. However, as the Claimant was served but was not present at the proceedings to contest it or even present when the order was made he asserted that this was not an appealable case. He relied on the cases of Evans v Bartlam 5 and Leymon Strachan v The Gleaner Company Ltd and another 6
However, he contended further that even the option to set aside was not available at the time the matter was brought to the Claimant's attention as the matter was far gone, that is, the property was transferred to the Commissioner of Lands, consequently the claimant would be at the mercy of the discretionary power of the Judge to set aside. Therefore, it was submitted that the Constitution was the most appropriate means of vindicating the Claimant's right to the property.
It was submitted further that the granting of the civil recovery order and the further acquisition of the Claimant's property pursuant to that order was in breach of section 2 of the POCA and was not justified under section 57 of the said Act, thereby violating the Claimant's fundamental right as enshrined in section 15 of the Charter. He contended that the critical feature of section 55 of the POCA, which deals with the civil recovery regime, is that the 2 nd Defendant must first show that the property in question represents proceeds of unlawful conduct before obtaining an order for civil recovery. He stated that it is only after this is established that the 2 nd Defendant can then rely on section 55(3) which allows for the Claimant's properties to be confiscated even though acquired before the appointed day on May 30, 2007. However, he noted that there is a twenty years limitation period within which to bring the proceedings from the time of acquisition through unlawful conduct.
Mr. Wildman also contended that the definition of criminal conduct under section 2 of the Act is subsumed in the definition given to unlawful conduct. As such, it is his contention that the time restriction on what is considered criminal conduct, that is, conduct which occurs on or after the appointed day May 30, 2007 is applicable
in the determination of unlawful conduct. The importance of the appointed day was recognized by Lord Hughes in Assets Recovery Agency (Ex parte) (Jamaica) 7On that basis he contended that the 2 nd Defendant would then be required to show that:
He submitted that otherwise the conduct could not qualify as an unlawful conduct for the purposes of the POCA.
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