Wilfred Rattigan v Senator the Honourable Kamina Johnson Smith
| Jurisdiction | Jamaica |
| Judge | Staple J (Ag) |
| Judgment Date | 08 November 2023 |
| Court | Supreme Court (Jamaica) |
| Year | 2023 |
| Docket Number | CLAIM NO. SU2023CV01256 |
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[2023] JMSC Civ. 213
CLAIM NO. SU2023CV01256
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CIVIL DIVISION
Civil Practice and Procedure — Applications to Strike Out Claim — Application to Strike Out Claim Started by Fixed Date Claim Form — Whether Striking out is Appropriate — Whether or not Claimant has Standing to Bring the Claim — Whether or Not the Claimant Can Bring this Action in a Representative Capacity — Whether or not that Capacity has Been Established — Whether or Not Claimant is the Appropriate Party to Seek the Relief Claimed — Whether or not Claimant has Demonstrated that His Substantive Rights were or are about to be Breached by the actions of the Defendants to Entitle him to Declaratory Relief — Whether or not the Claimant Has Disclosed Reasonable Grounds for Bringing the Claim as Filed.
Ms. Sophia Bryan instructed by Boss Law for the Claimant/Respondent
Mr. Ransford Braham K.C. with Ms. Anna Gracie and Mr. Chukwuemeka Cameron instructed by Brahamlegal for the 1 st Respondent
Ms. Lisa White (Deputy Solicitor General) instructed by the Director of State Proceedings for the 2 nd and 3 rd Respondents
In or around April of 2022, the 1 st Respondent, Senator the Honourable Kamina Johnson Smith, the Minister of Foreign Affairs and Foreign Trade, was presented as Jamaica's candidate for the August post of Secretary General of the Commonwealth of Nations.
History will record the result of that campaign. However, what followed was a political firestorm surrounding the candidacy of the 1 st Respondent and how her campaign was funded.
Into this web of intrigue stepped the Claimant/Respondent. He has filed the present action, in his words, on behalf of himself and Jamaicans in the Diaspora and Jamaica itself. What is it that Mr. Rattigan seeks by this claim?
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a) A declaration that the 1st and 2nd Respondents failed to comply with statutory and administrative regulations governing a gift/donation in the amount of Ninety-Nine Thousand United States Dollars (USD $99,000.00) provided by “corporate Jamaica” for the benefit of the 1 st Respondent and, by extent, the Jamaican Government.
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b) A declaration that the 3 rd Respondent failed to take appropriate action to compel the 1 st and 2 nd Respondents to comply with the applicable statutory and administrative regulations.
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c) A declaration that the 1 st Respondent failed to file a disclosure with the Integrity Commission regarding a gift/donation she received that did not fall within the filing exceptions and is obliged to file disclosure with the Integrity Commission concerning the gift of USD $99,000.00 received from donors.
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d) A declaration that the 1 st Respondent failed to file a disclosure with the Integrity Commission regarding a USD $99,000.00 gift/donation she received from “corporate Jamaica” in the form of consulting services.
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e) A declaration that as a beneficiary of a USD $99,000.00 gift/donation from “corporate Jamaica” the 1 st Respondent should have declared this sum to the Tax Administration of Jamaica and paid appropriate taxes thereon.
There was an immediate broadside from the Respondents to this Claim. The 1 st Respondent and the 2 nd and 3 rd Respondents (together) have sought to have it struck out.
The 1 st Respondent's Application seeks the following:
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a) A Declaration that the Court has no jurisdiction to hear the claim.
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b) In the alternative, a declaration that the Court will not exercise jurisdiction to hear the claim.
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c) Further, an order striking out the claim.
The 2 nd and 3 rd Respondents' Application is much more straightforward: we want the claim struck out.
It cannot be stressed enough that this Ruling is a determination of these legal issues concerning jurisdiction/standing and the striking out of the claim. It is not proposed to delve into the merits of the substantive issues raised beyond what is necessary to determine the Applications before the Court.
I will go into the grounds for the 2 sets of applications as part of the discussion phase of this Ruling as I am of the view that it makes for much easier reading than the usual method of listing out everything only to rehash it later on.
The Court, on the 29 th May 2023, made orders, for (among other things) written submissions and authorities to be filed and exchanged by the parties on or before September 29, 2023. The Court has seen compliance with this order from the Respondents and only on the 20 th October 2023 did the Claimant comply with the Court Order. Indeed, the Claimant filed further Affidavits way outside of the time given him to respond (the 23 rd June 2023).
As a general comment, litigants and lawyers who represent them should be aware that the Court's patience with non-compliance with its rules, orders and practice directions has now worn thin. The days of great forbearance and indulgence have come to an abrupt end. Forewarned is forearmed.
The essential issue to be determined on this application is whether or not this claim can be sustained by the Claimant. All three Respondents have raised a large number of grounds upon which they assert that the Claim should be dismissed.
They largely centre around the legal arguments that:
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a) the Claimant has no standing to bring the claim;
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b) the relief sought by the Claimant, even if he had standing, could not be granted by the Court as the proper procedure to get such relief has not been followed or in any event, adequate relief exists in other entities to resolve the issue(s) raised by the Claimant.
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c) Further, there is no evidence to support the granting of the declarations sought in the claim;
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d) The matters complained of are non-justiciable as they would involve decisions of the Cabinet of Jamaica in relation to matters of foreign policy and foreign relations; and
The Court had not seen any filed submissions from the Claimant (as previously ordered by the Court) until the morning of the commencement of the hearing when it asked the Claimant's counsel to write down her submissions on paper, scan and email them to the Court and the other parties so that the matter could proceed as scheduled.
It is exceedingly important that the relief being sought, as outlined above, always be borne in mind when reviewing the submissions in this matter. For the question the Court is being asked to answer surrounds the relief/orders requested of the Court.
The written submissions were supplemented by oral arguments at the hearing.
Mr. Braham highlighted paragraphs 12 where he summarized the relief being sought by Mr. Rattigan. His submission is that the Court would have to be satisfied that Mr. Rattigan, a private citizen, is entitled to bring a claim for such relief.
He highlighted paragraph 16 of the Affidavit of Mr. Rattigan sworn on the 12 th April 2023. He contends that the Claimant is arguing that the 1 st Respondent received the money in an official capacity. This suggests that the Claimant is asking for a remedy in administrative law.
The principles regarding the granting of declarations are the same whether it is a private law remedy or a public law remedy. The Claimant must establish some legal right which he seeks to protect by the declaration. He pointed to the case of Lennox Hines v Electoral Commission of Jamaica et al 1. He also cited the decision of Legal Officers' Staff Association et al v The AG et al 2 in support of this position. McDonald-Bishop J (as she then was) stated, inter alia, that the declarations sought by a Claimant must resolve a real difficulty with which the Claimant or Applicant is faced.
He also raised a very strong argument that the evidence to support the granting of the relief prayed was simply non-existent.
Ms. White essentially relied on the submissions of Mr. Braham in relation to the position that Mr. Rattigan has not established any justiciable rights as highlighted in paragraphs 16-18 above.
Ms. White also pointed out that there is no evidence from Mr. Rattigan that there have been any breaches committed from his affidavit in a similar argument to those raised by Mr. Braham.
On the face of his pleadings, Ms. White contended, Mr. Rattigan has established no cause of action.
Ms. Bryan says that the claim was being brought under the Access to Information Act and the Financial Audit and Administration Act. She submitted that the Affidavits in Support of the Application have shown Access to Information Requests concerning the issue of the gift. But none of the Ministries have been in
She further submitted that the essence of the declaration is about transparency and accountability and sought to argue that perhaps the Claim itself could be amended to reflect this as this was the “intention behind the claim”. Counsel conceded that the relief as currently prayed is “accusatory” in nature, but the essence of the claim or what it was intended to be was inquisitorial.
When pressed by the Court as to why no amendment was made by her prior to after she first time the matter was before the Court or even prior to today's date, counsel really had no reply.
From the authorities filed in support of her response to the Applications by the Respondents, the thrust of Ms. Bryan's arguments seems to be that even if the filing of his claim for...
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