Leonard Fahie Hendrickson Williams Claimants v The Commissioner of Police Attorney General Defendants

• Jurisdiction: British Virgin Islands
• Judge: Ellis, J.
• Judgment Date: 29 May 2015
• Neutral Citation: VG 2015 HC 6
• Judgment citation (vLex): [2015] ECSC J0529-3
• Court: High Court (British Virgin Islands)
• Docket Number: CLAIM NO. BVIHCV2012/0314
• Date: 29 May 2015

[2015] ECSC J0529-3

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

THE TERRITORY OF THE VIRGIN ISLANDS

CLAIM NO. BVIHCV2012/0314

In the Matter of the Virgin Islands Constitution Order, 2007

and

In the Matter of the Police Service (Delegation of Powers) Regulations, 2012 (Statutory Instrument No. 14 of 2012

and

In the Matter of an Application by Leonard Fahie and Hendrickson Williams for Redress Pursuant to Section 31(1) of the Virgin Islands Constitution Order, 2007 for Contraventions of Section 91(2) to (9), 96 and 97 Thereof

Between:

Leonard Fahie

and

Hendrickson Williams

Claimants

and

The Commissioner of Police

and

The Attorney General

Defendants

Appearances:

Ms. Dancia Penn QC and Yohanseh Cave for the Claimants

Mrs. Jo-Ann Williams-Roberts for the Defendants

Ellis, J.

1 The Claimants are officers of the Royal Virgin Islands Police Force ("RVIPF") and have brought the present Claim against the Commissioner of Police and the Attorney General.

2 By Fixed Date Claim Form filed on 15 ^th November 2012, the Claimants made two main averments which included (1) that the Claimants' rights under section 12 of the Virgin Islands Constitution Order, 2007 ("the Constitution") have been and are being breached; (2) that the Police Service (Delegation of Powers) Regulations, 2012 ("the 2012 Regulations") made on 16 April 2012, under section 97 (5) of the Constitution are ultra vires the Constitution.

3 The First Claimant, Leonard Fahie, avers at paragraph 24 of his Affidavit that the various actions taken in relation to the RVIPF contravene the provisions of the Constitution, and breach his rights granted under the Constitution and the terms and conditions of his employment as a Police Officer, in particular, his right to promotion.

4 The Second Claimant, Hendrickson Williams, makes similar averments at paragraph 24 of his Affidavit, asserting that the various actions taken in relation to the RVIPF are in breach of the Constitution and his rights under the Constitution, and have a direct adverse impact on him and the terms and conditions of his employment as a police officer.

5 The Claimants seek the following constitutional and administrative reliefs of the Court:

• (a) a declaration that their rights under section 12 of the Constitution have been and are being breached;

• (b) a declaration that the 2012 Regulations made on the 16 ^th day of April 2012, are ultra vires the Constitution and are null, void and of no effect;

• (c) a declaration that the First Defendant has acted ultra vires section 97 of the Constitution;

• (d) a declaration that any and all things done and actions taken or directed in pursuant of the 2012 Regulations including the making of the Royal Virgin Islands Police Force Promotion Policy in April 2012 are in consequence ultra vires the Constitution, null, void and of no effect;

• (e) a declaration that the examinations conducted by the Commissioner of Police acting on the authority purportedly given to him by the 2012 Regulations are of no legal effect in that among other things the appointment of a Promotions Board for the conduct of an examination for promotion within the Royal Virgin Islands Police Force contravenes the Constitution by taking away the role and purpose given to the Police Service Commission under the Constitution;

• (f) a declaration that Part IV of the Police Act, Cap 165 is repugnant to the Constitution, and that the said Act should in accordance with section 115(1) of the Constitution be construed so as to give and preserve the role and purpose of the Police Service Commissioner as provided for in section 96 of the Constitution;

• (g) a declaration that the power of delegation given to his Excellency the Governor under section 97(5) of the Constitution was not validly exercised, in that in the making of the 2012 Regulations, due regard was not paid to the provisions of section 96 and section 115 of the Constitution. The exercise of the power granted in section 97(5) resulted in bringing into effect provisions of the Police Act, Chapter 165 which are repugnant to the Constitution;

• (h) Damages;

• (i) Costs;

• (j) Further and other relief.

6 After acknowledging the Claim, the Defendants filed a Notice of Application on 11 ^th December 2012 in which they seek to strike out of the Claimants' Claim on the following grounds:

• i. that the Fixed Date Claim Form and affidavits in support fail to disclose the grounds upon which they seek relief;

• ii. the Claim Form and affidavits in support fail to support to disclose all or sufficient facts on which this claim is based;

• iii. the Claim Form discloses no reasonable grounds for bringing the Claim; and/or

• iv. the Claim Form is an abuse of process of the Court.

7 The Claimants filed an Affidavit in answer to the Defendants' Application for Strike out on 21 ^st January, 2013. Following this, a further Affidavit in Reply was filed on behalf of the Defendants on 30 ^th January, 2013.

THE PARTIES' SUBMISSIONS

8 Counsel for the Applicant referred the Court to CPR Part 56.7(4) (d) and (e) which provides as follows:

56.7 (4) — The affidavit must state –

(a) the name, address and description of the claimant and the defendant;

(b) the nature of the relief sought identifying –

(i) any interim relief sought; and

(ii) whether the claimant seeks damages, restitution, recovery of any sum due or alleged to be due or an order for the return of property, setting out the facts on which such claim is based and where practicable, specifying the amount of any money claimed;

(c) in the case of a claim under the relevant Constitution – the provision of the Constitution which the claimant alleges has been, is being or is likely to be breached;

(d) the grounds on which such relief is sought;

(e) the facts on which the claim is based;

(f) the claimant's address for service; and

(g) the names and addresses of all defendants to the claim.

9 She submitted that the Respondents' Affidavits do not state the grounds on which relief is sought and/or the facts on which the claim is based. Counsel submitted that this was fatal to the claim as this error is not a mere technical failure to comply with a rule, but one that goes to the root of the Applicants' claim. In its current form, the claim discloses no reasonable ground for bringing the claim and no viable cause of action has been pleaded in a way which would allow the Applicant to know the case which it has to answer.

10 In response, Counsel for the Respondents submitted that they have complied with the relevant provisions of the CPR. She submitted that the primary contention of the Claim is that the Police Service (Delegation of Powers) Regulation 2012 is in conflict with the Virgin Islands Constitution Order 2007, ultra vires and therefore void. This contention is elucidated at paragraph 20 of the Affidavits filed by each Claimant in which they depose that the effect of the 2012 Regulations is to weaken the role of the Police Service Commission by taking away a substantial part of its role; and for him as a serving police officer nullifies the protection given by the Constitution which contemplates the existence of a police service commission acting as a buffer between himself as a serving officer and the Commissioner of Police and the Governor.

11 The Applicants also contends that the Respondents' Claim should be struck out because it has failed to disclose a reasonable ground for bringing the claim. First, the Applicant alleges that the Respondents have failed to state any facts and/or particulars of the actions of Commissioner of Police which have contravened or infringed upon their constitutional rights or the Constitution in general. As a result, Counsel contended that the Claim is vague, disjointed and failed to coherently set out the case which the Applicants have to answer.

12 In advancing this contention, the Applicants rely on the dicta in Amerally and Bentham v Attorney General (1978) 25 WIR 272 at 308 1 in which Crane J stated that a claimant who seeks to claim a breach of constitutional provisions should show on the face of the pleadings the nature of the alleged violation or contravention that this being asserted.

13 Counsel for the Applicants argued that the Respondents have failed to disclose or particularize facts of discrimination within the law itself or the way the law is administered in relation to their claim. She further argued that the Respondents have failed to particularize the facts of the alleged breach of section 12 of the Constitution and she submitted that the same arguments can be made in respect of each of the other six declarations sought.

14 More particularly, the Applicants complained that the Respondents have failed to plead and state facts on why or in what way Part IV of the Police Act is repugnant to the Constitution.

15 Secondly, the Applicants submitted that the Respondents' pleadings are woefully deficient in that they do not go the distance of disclosing a cause of action against the Applicants. Counsel for the Applicants submitted that this failure to properly plead their case renders the Claim unsustainable. Counsel particularly referenced paragraph 24 of the Respondents' affidavits and submitted that it does not disclose reasonable grounds for bringing the claim.

16 Finally, Counsel further argued that the claim is not maintainable because the factual premise upon which it appears to be based is erroneous. This submission in based on the Respondents misapprehension that the Promotion Policy which came into force on 13 ^th April 2012 came as a result of the authority vested in the Commissioner of Police by the 2012 Regulations. Counsel trenchantly argued that since the Promotion

Policy was not created by the 2012 Regulations, no cause of action could be maintained and the relief sought in paragraphs (d) and (e) must be struck out

17 Counsel further...