Seaga v The Attorney General
| Jurisdiction | Jamaica |
| Judge | Wolfe, C.J. |
| Judgment Date | 07 November 1997 |
| Court | Supreme Court (Jamaica) |
| Docket Number | C.L. S 170 of 1997 |
| Date | 07 November 1997 |
Supreme Court
Wolfe, C.J.
C.L. S 170 of 1997
Dr. Lloyd Barnett, Miss Carol Davis and Miss Dorothy Lightbourne for plaintiff instructed by O. G. Harding & Co.
Dr. Kenneth Rattray, Q.C., Solicitor General, Douglas Leys, Senior Assistant Attorney General and Lackston Robinson for the defendant instructed by the Director of State Proceedings.
Practice and procedure - Striking out of statement of claim and endorsement of writ — Locus standi — Abuse of the process of the court — Whether the plaintiff, Rt. Hon. Edward Seaga, had locus standi to maintain the action or to seek the relief sought — Whether the plaintiff was guilty of an abuse of the process of the court by evading the safeguards provided for in Section 564 of the Judicature (Civil Procedure Code) Law — Court found that the plaintiff had not alleged any vested right which had been infringed or which was being threatened — Plaintiff had no locus standi to seek the declarations sought — Had the locus standi of the plaintiff been established the court would have refrained from striking out the action as being an abuse of the process of the court — Writ and endorsement struck out.
Practice and procedure — Summons to dismiss the action — Applicant sought a declaration that the conduct of Members of Jamaica Constabulary Force and Members of the Jamaica Defence Force constituted conduct of persons and/or of a public institution which fell within the terms of Section 2 of the Commissions of Enquiry Act — Whether the writ of summons and statement of claim contained no allegations of facts on the basis of which the declaration could be maintained — Held that there was no factual basis on which the declaration could be granted — Action dismissed.
The plaintiff is the leader of the Jamaica Labour Party and Member of Parliament for the constituency of Western Kingston. By virtue of the Constitution of Jamaica, the plaintiff is the duly appointed Leader of the Opposition.
During a joint police and military operation in Western Kingston, more particularly, the community known as Tivoli Gardens, between May 6 to May 8, 1997, four citizens were killed, five others injured by gunshots and damage done to the homes and property of several residents.
Acting upon the instructions of the plaintiff, in his capacity as a Member of Parliament and Leader of the Jamaica Labour Party, Senator Dr. Percival Broderick, the Chairman of the Jamaica Labour Party, wrote to His Excellency, the Governor-General on May 9, 1997. The purpose of so writing was to request the Governor-General to exercise his powers under the Commissions of Enquiry Act and issue a Commission appointing Commissioners to enquire into the conduct of the security personnel involved in the operations referred to earlier herein.
On May 19, 1997, the Governor-General responded, indicating that he had been advised by the Office of the Solicitor-General that he had no power to issue a Commission of Enquiry in the absence of advice from the Prime Minister or the Cabinet of Jamaica so to do.
The plaintiff contends that by virtue of section 2 of the Commissions of Enquiry Act and the provisions of section 32(1)(b) of the Constitution of Jamaica it is lawful for the Governor-General acting on his own discretion to issue a Commission of Enquiry without the advice of the Prime Minister or the Cabinet of Jamaica.
Arising out of the refusal of the Governor-General to accede to the plaintiff's request, the plaintiff on the 20th day of June, 1997, issued a Writ, against the defendant, endorsed in the following manner.
“The plaintiff's claim against the defendant is for declarations that:-
1. Section 2 of the Commissions of Enquiry Act and in particular the words, “whenever he shall deem it advisable” contained in the said section confers on the Governor-General the power to act in his own discretion without advice of the Prime Minister or the Cabinet of Jamaica.
2. By virtue of section 2 of the Commissions of Enquiry Act and section 32(1)(b) of the Constitution of Jamaica, the Governor-General is authorised, in his own discretion, to issue a Commission appointing Commissioners of Enquiry and in so doing is not required to act on the advice of the Prime Minister or Cabinet or a minister.
3. The conduct of members of the Jamaica Constabulary Force and members of the Jamaica Defence Force during the operation in Western Kingston in the parish of Kingston between May 6, 1997 and May 8, 1997, resulting in the death of four citizens, the injuring by gunshot of five others and damage to homes and property of several residents, constitutes conduct of persons and/or of public institutions which falls within the terms of section 2 of the Commissions of Enquiry Act.”
Before me now for determination is a summons, issued at the instance of the defendant, to strike out the Statement of Claim and the Endorsement of the Writ and to dismiss the action. The summons as amended is in the following terms:
“Application by the defendant for an Order that:
1. The Statement of Claim and the Endorsement of the Writ be struck out and the action be dismissed pursuant to section 238 of the Judicature (Civil Procedure Code) Law and the inherent jurisdiction of the court on the grounds that:
(a) The Writ of Summons and the Statement of Claim disclose no reasonable cause of action redressable at the instance of the plaintiff against the defendant.
(b) The Writ of Summons and the Statement of Claim disclose no reasonable cause of action against the defendant.
(c) The action is an abuse of the process of the court.
(d) The Writ of Summons and the Statement of Claim contain no allegations of facts on the basis of which the declaration numbered three can be maintained.
(e) The court has no jurisdiction to grant the declarations sought”
Let it be noted that this is not a representative action, that is, it is not an action brought for and on behalf of those who suffered loss of life and property as alleged. It is an action brought by the plaintiff on his own behalf as a private citizen.
The position of the defendant in this ground is that the plaintiff, the Rt. Hon. Edward Seaga, has no locus standi to maintain the action or to seek the relief sought.
Dr. Rattray invited the court to so conclude, on the basis that the Writ of Summons and Statement of Claim disclose no legal right or interest of the plaintiff which is in issue. The rights which could be asserted for the appointment of a Commissioner of Enquiry under the Commissions of Enquiry Act are rights of the public at large and the plaintiff cannot by virtue of the Commissions of Enquiry Act derive any personal rights over and above the general public.
It is further submitted that the plaintiff failed to assert in the Writ of Summons and/or Statement of Claim that he has suffered any loss or damage by reason of the Governor-General's action which he seeks to impugn. The jurisdiction of the court, he submitted, is limited to declaring contested legal rights of the parties represented in the litigation and not those of anyone else. For this proposition he relies on the dictum of Lord Diplock in Gouriet v. Union of Post Office Workers [1978] A.C. 435 at page 501.
“Authorities about the jurisdiction of the courts to grant declaratory relief are legion. The power to grant a declaration is discretionary; it is a useful power and over the course of the last hundred years it has become more and more extensively used - often as an alternative to the procedure by way of certiorari in cases where it is claimed that a decision of an administrative authority which purports to affect rights available to the plaintiff in private law is ultra vires and void. Nothing that I have to say is intended to discourage the exercise of judicial discretion in favour of making declarations of right in cases where the jurisdiction to do so exists. But that there are limits to the jurisdiction is inherent in the nature of the relief: a declaration of rights.
The only kinds of rights with which courts of justice are concerned are legal rights; and a court of civil jurisdiction is concerned with legal rights only when the aid of the court is invoked by one party claiming a right against another party, to protect or enforce the right or to provide a remedy against that other party for infringement of it, or is invoked by either party to settle a dispute between them as to the existence or nature of the right claimed. So for the court to have jurisdiction to declare any legal right it must be one which is claimed by one of the parties as enforceable against an adverse party to the litigation, either as a subsisting right or as one which may come into existence in the future conditionally on the happening of an event.
The early controversies as to whether a party applying for declaratory relief must have a subsisting cause of action or a right to some other relief as well can now be forgotten. It is clearly established that he need not. Relief in the form of a declaration of right is generally superfluous for a plaintiff who has a subsisting cause of action. It is when an infringement of the plaintiff's rights in the future is threatened or when, unaccompanied by threats, there is a dispute between parties as to what their respective rights will be if something happens in the future, that the jurisdiction to make declarations of right can be most usefully invoked. But the jurisdiction of the court is not to declare the law generally or to give advisory opinions; it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and not those of anyone else.”
The defendant moves the court to find that essentially the plaintiff is asserting by means of a private law action a...
To continue reading
Request your trial