Rohan James v Andrew Lewis

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: D Fraser JA
• Judgment Date: 14 September 2023
• Neutral Citation: JM 2023 CA 106
• Year: 2023
• Docket Number: APPLICATION NO COA2023APP00184

Between

Rohan James

Applicant

and

Andrew Lewis

Respondent

[2023] JMCA App 23

APPLICATION NO COA2023APP00184

IN THE COURT OF APPEAL

Rule 1.4(2), (3) and (4) of the Court of Appeal Rules — urgency, criterion for matters to be heard in the long vacation — whether circumstances satisfy criterion

Hugh Wildman for the applicant

Peter Champagnie KC and Neco Pagon for the respondent

IN CHAMBERS

(Considered on paper pursuant to rule 2.9(4) of the Court of Appeal Rules)

D Fraser JA

Introduction

1 This is an application by the applicant, Rohan James, for his application for leave to appeal the decision of Tie-Powell J (‘the learned judge’) made on 3 August 2023, to be heard during the long vacation.

2 The decision about which the applicant is aggrieved (order number 9) is the refusal by the learned judge to grant a temporary stay of the applicant's interdiction, that would have had the effect of reinstating the applicant, pending the determination of his application for leave to apply for judicial review of the decision to interdict and prefer charges against him.

Background

3 The applicant is a member of the Jamaica Constabulary Force (JCF) at the rank of Corporal and the Chairman of the Police Federation (‘the Federation’). The Federation, constituted under section 67(1) of the Constabulary Force Act, represents rank and file members of the police force in matters concerning their general welfare and efficiency. The respondent is the Assistant Commissioner of Police in charge of Administration in the Office of the Commissioner of Police.

4 The interdiction of the applicant arose from statements he made on 15 July 2023 at the funeral of a fallen colleague, concerning non-payment of overtime pay to rank and file members of the Federation, despite a court order requiring such payments. This interdiction was effected by a notice issued to the applicant on 26 July 2003, signed by the respondent, which indicated that following investigations into the remarks he made, the Commissioner of Police had directed that disciplinary proceedings be taken against him at a Court of Enquiry and, accordingly, in the public interest, it was desirous that he cease to perform duties in keeping with regulation 35(1) of the Police Service Regulations 1961. The notice further outlined that he was interdicted from duty with immediate effect on three-quarters of his salary. The applicant additionally received other notifications, including that he was required to hand over all government property in his possession and apply for permission at least two months in advance, should he desire to leave the island.

5 The applicant's legal response was swift. On 28 July 2023 he filed an application for leave to apply for judicial review of his interdiction, seeking declarations that the decision to place him on interdiction was illegal, null and void and of no effect as it was in breach of section 13(3)(b) and (c) of the Constitution. He also sought orders of certiorari to quash both the decision to interdict and the charges brought against him. Additionally, on 31 July 2023, he filed an application for a stay of the decision of the respondent placing him on interdiction, pending the hearing and determination of his application for leave to apply for judicial review of his interdiction and the preferment of disciplinary charges against him.

The proceedings below

6 The case management conference for the applications filed on 28 and 31 July 2023 came on for hearing before the learned judge on 2 and 3 August 2023. The note from the learned judge outlining her reasons for the oral rulings she made during the conference, so far as relevant to this application, discloses that:

• a) counsel for the applicant having indicated that he wished to proceed first with the application for the stay filed 31 July 2023, it became apparent that the basis of the application was that the charges laid against the applicant were grounded in Regulations that counsel contended were unconstitutional. Consequently, the court was of the view that it was prudent to hear from the Attorney General's Department, without making the Attorney General a party to the proceedings;

• b) it was decided that the practical approach would be to hear the two applications filed on 28 and 31 July 2023, respectively, together. A date was agreed in consultation with the Registrar of the Supreme Court (28 September 2023) and orders made to facilitate that hearing;

• c) the respondent agreed that all disciplinary proceedings arising from the charges laid against the applicant would be halted until the determination of the applications filed on 28 and 31 July 2023;

• d) having heard submissions on the oral application made on behalf of the applicant for the immediate reinstatement of the applicant to his position the court refused the application. This was on the basis that, “[i]t seemed only logical to the Court that such a ruling must, at the very least, await the final determination of the various applications before the court.”;

• e) the court ordered, as offered by the respondent, that the applicant was to be paid 99% of his salary; and

• f) the application for leave to appeal by the applicant was refused.

The application that the application for leave to appeal the refusal of the learned judge to grant a temporary stay of the applicant's interdiction should be heard in the legal vacation

7 The applicant was displeased with the refusal of the learned judge to grant the temporary stay that would have had the effect of immediately reinstating him to his position pending determination of his applications below. Having been refused leave by the learned judge to appeal her decision, the applicant filed his application for leave to appeal in this court, on 3 August 2023, the same day of the learned judge's ruling. Then, on 8 August 2023, the applicant filed this application seeking an order that his application for leave to appeal be heard during the long vacation.

8 In the grounds, the applicant asserts that he has been deprived of his statutory rights under sections 35 and 47 of the Police Regulations, as he had been interdicted before he had the opportunity to respond to the draft charges and the charges were brought by the respondent who has no jurisdiction to do so. In his affidavit in...