IN THE COURT OF APPEAL

REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL CIVIL APPEAL NO. 237 of 2008 IN THE MATTER OF THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO ( THE CONSTITUTION ) ENACTED AS A SCHEDULE TO THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO ACT CHAPTER 1:01 AND IN THE MATTER OF AN APPLICATION FOR REDRESS BY THE APPLICANT PURSUANT TO SECTION 14 OF THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO FOR THE CONTRAVENTION OF SECTION 4 OF THE SAID CONSTITUTION IN RELATION TO THE APPLICANT AND IN THE MATTER OF THE DEPRIVATION BY THE EXECUTIVE ARM OF THE STATE OF THE APPLICANT S SAID PROPERTY NAMELY MONIES WHICH THE APPLICANT WAS ENTITLED TO AS A MEMBER OF THE DEFENCE FORCE BETWEEN DONALD MOHAMMED AND APPELLANT THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO RESPONDENT PANEL: P. Jamadar J.A. A. Soo Hon J.A. G. Smith J.A. APPEARANCES: Mr. R.L. Maharaj S.C. instructed by Ms. N. Badal appeared on behalf of the Appellant. Ms. A. Alleyne instructed by Ms. S. Sharma appeared on behalf of the Respondent. DATE OF DELIVERY: 10 th October 2013. Page 1 of 11

I have read the judgment written by Smith J.A. I agree with it and have nothing to add. P. Jamadar Justice of Appeal Delivered by G. Smith J.A. JUDGMENT INTRODUCTION 1. The Appellant retired from the service of the Trinidad and Tobago Coast Guard (the Coast Guard ) in 1999, having reached the rank of Lieutenant Commander. Upon retirement he received a gratuity payment of $240,595.85 and a monthly pension. The Appellant claims that he was entitled to receive a bigger gratuity in the sum of $624,791.51 (a difference of $384,195.66). The Appellant claimed that the failure of the State to pay him the difference of $384,195.66 was a breach of his constitutional rights and he brought a constitutional motion to the courts to vindicate his rights. In his constitutional motion he sought various declarations in respect of the breach of his constitutional rights as well as compensatory and vindicatory damages. 2. Myers J. dismissed his constitutional motion and ordered him to pay costs to the Respondent. The Appellant now appeals that decision. 3. For the reasons that will appear in my analysis, I dismiss this appeal. 4. Before embarking upon this opinion I must mention that this appeal stayed for a considerable time in the system. This was because after the first hearing, the original panel requested further information. After this information was provided one member of the panel was severely injured in a collision and later died as a result of injuries sustained. Further, another member of the panel retired while awaiting a hopeful recovery of the injured judge. Eventually, a new panel had to be convened to hear this appeal. Page 2 of 11

FACTS 5. The Appellant started his life in the public service as a teacher at the Bon Accord Government School. On 6 th November, 1963 he was seconded from the Teaching Service to the Trinidad and Tobago Defence Force (the Defence Force ) in the rank of Able Seaman in the Coast Guard. By virtue of section 3 of the Defence (Pay and Superannuation) (Transferred Officers) Regulations (No. 19 of 1967) 1 (the Regulations ) he was deemed to be transferred to the Defence Force on 1 st January, 1965. 6. In 1981 the Appellant was promoted to the rank of Sub-Lieutenant. The compulsory retirement age for a Sub-Lieutenant is forty-seven years. The Appellant would have reached forty-seven years on 4 th February, 1986. However, by virtue of his stature as an ex-public Service Officer and pursuant to sections 8 and 9 of the Regulations he was afforded three options on attaining forty-seven years of age: (1) Retirement from the Defence Force; (2) Re-absorption into the Public Service to continue his Public Service career up to the relevant retirement age (age sixty); (3) To continue in the Defence Force up to his Public Service retirement age (age sixty). 7. By letter dated 5 th July, 1984 the Appellant chose to take option (3), namely, to continue in the Defence Force until age sixty, 8. When he exercised his option he had been aware of a special benefit that had been extended to persons who had been seconded from the Trinidad and Tobago Police Service (The Police Service ) to the Defence Force. This benefit had been generated out of a Cabinet decision in August 1981 and was effected for the purpose of redressing a specific inequity that would have otherwise befallen those Police Officers who had been seconded form the Police Service. This was as a result of the following situation (a) The Police Service comprises First and Second Division Officers. The First Division Officers are the higher ranks in the Police Service, namely from the rank of Assistant Superintendent and above. The Second Division Officers are the lower ranks, namely, from the rank of Constable up to Inspector. First Division Officers of the Police Service must retire at the age of sixty. Second Division Officers must retire at the age of fifty-five. 1 Made under section 244 of the Defence Act Chapter 14:01. Page 3 of 11

(b) All of the Police Officers who were seconded to the Defence Force were Second Division Officers. By virtue of sections 8 and 9 of the Regulations they would all have had to retire at age fifty-five. However, if they had continued in the Police Service, they might have reached the First Division and may have been entitled to retire at age sixty. 9. In an effort to redress this inequity, the Cabinet decided in August 1981 to allow those Police Officers who had been seconded to the Defence Force and who had reached a rank equivalent to that of an Officer in the First Division of the Police Service to continue on in the service of the Defence Force until age sixty. The mechanism adopted was: (1) Such Officers would retire at age fifty-five and be given a pension and gratuity; (2) They would also be given a contract to serve in the Defence Force for a further five years. At the end of this period, they would be given a second gratuity of twenty percent of their salary over the previous five years. The tax on this gratuity would also be waived. 10. This Cabinet decision redressed one inequity, namely, seconded Police Officers like other Officers seconded from the Public Service could now serve in the Defence Force until age sixty. However, the decision provided these seconded Police Officers with enhanced financial remuneration as compared to other Officers seconded from the Public Service. 11. At some unspecified time after this Cabinet arrangement, the Appellant requested terms and conditions similar to those of the seconded Police Officers. 12. In October 1993 the Appellant was officially informed that his option to continue in the Defence Force until age sixty had been accepted; however, he was also informed that he could not be awarded the terms and conditions of employment applicable to former members of the Trinidad and Tobago Police Service since he did not qualify for such treatment, he being a former public servant, employed under different terms and conditions of service.... 2 13. The Appellant continued to complain to his superiors about what he perceived to be this inequity between persons seconded from the Public Service and persons seconded from the Police Service. 2 See the letter annexed to the Appellant s affidavit filed on 5 th April 2004 as D.M. 2. Page 4 of 11

14. In January 1994, the Appellant was informed by the Chief of Defence Staff that his complaint would not be taken to the Defence Council since one Lieutenant Colonel Luke had taken up a similar complaint and any ruling of the Defence Council on Lt. Col. Luke s case would apply to him. 15. On 18 th May, 1998 the Appellant was officially informed by the Acting Chief of Defence Staff that his complaint had not been accepted by the Defence Council. 16. However, unknown to the Appellant, before this decision to reject his complaint was communicated to him two relevant decisions had been taken by the Defence Council. Firstly, the Solicitor General had advised that Lt. Col. Luke was not entitled to the same terms and conditions of service as the former seconded Police Officers. In spite of this advice, the Defence Council decided, in August 1995, to seek Cabinet approval for the payment to Lt. Col. Luke and others like the Appellant to bring them on par with the financial remuneration offered to the relevant Officers seconded from the Police Service. Secondly on 25 th September, 1996 a newly appointed Defence Council noted the advice of the Solicitor General and the decision of the previous Defence Council, and rejected Lt. Col. Luke s petition. 17. The Appellant only became aware of these two decisions sometime in the year 2000. He was only informed of the decision not to accept his complaint on 18 th May, 1998. 18. On 3 rd February, 1999 the Appellant retired from the Defence Force on reaching age sixty. He has since pursued his complaint in various quarters without success. Finally, he brought this action. 19. To date, no Officer seconded from the Public Service to the Defence Force has been able to access the enhanced contractual arrangement granted to former Second Division Police Officers seconded to the Defence Force. By this motion the Appellant alleges that the actions of the State in refusing to extend to him the same terms and conditions offered to Second Division Police Officers who were seconded to the Defence Force breached a wide plethora of his constitutional rights such as the right to equality of treatment from a Public Authority, the right to enjoyment of property, the right not to be subjected to cruel and unusual treatment and the right to respect for private and family life. Page 5 of 11

same. 4 While there is some academic debate about the need to show that the Public Authority 20. The main thrust of the Appellant s case focused on the right to equality of treatment from a Public Authority. There was also discussion of the right to enjoyment of property and the right not to be deprived thereof except by due process of law but this argument morphed into a discussion of the law of legitimate expectation, which, as I will discuss below was not really relevant or meritorious. ANALYSIS A. The Appellant has not made out a case of unequal treatment by a Public Authority 21. Section 4(1)(d) of the Constitution of the Republic of Trinidad and Tobago (the Constitution ) guarantees the right of an individual to equality of treatment from a Public Authority in the exercise of its functions. 22. To successfully advance a claim of unequal treatment under section 4(1)(d) of the Constitution an aggrieved person must show that he has been treated differently from other persons who are similarly circumstanced. Such persons are described in law as actual or hypothetical comparators. The relevant circumstances of the comparators must be the same or not materially different from the aggrieved person. 3 The circumstances need not be exactly the was actuated by malice, such a debate is of no relevance here since the State has conceded that the issue of malice is not relevant to this case. 23. Once it is established that an aggrieved person has been treated differently from such a comparator the burden shifts onto the alleged discriminator/public Authority to justify the unequal treatment as having a legitimate aim and as being proportionate in respect of the means employed to achieve that aim. 5 24. In the present matter, Myers J. decided that the Second Division Police Officers who had been seconded to the Defence Force were not comparators to the Appellant. The circumstances 3 See Bhagwandeen v The Attorney General of Trinidad and Tobago [2004] UKPC 21 [18]. 4 See Police Service Commission v Graham C.A. 143 of 2006 [58] (Jamadar JA). 5 See Graham (n 4) [19]. Page 6 of 11

of those seconded Police Officers were materially different from those of the Appellant. An appropriate comparator would have been someone from the Public Service whose original terms and conditions required that person to retire at age sixty. There was therefore no need to go further and consider issues of justification and proportionality for any alleged unequal treatment. 25. I agree with the conclusion of Myers J. for the following two reasons: (i) Firstly, the difference in the compulsory retirement ages and consequential pension rights upon entry into the service of the Defence Force are material matters that make it unsuitable for the seconded Police Officers to be comparators to the Appellant. (ii) Secondly, the source of the differentiation between seconded Police Officers and seconded Public Servants is a constitutionally valid law and to hold that this differentiation is not valid would be an unfounded collateral attack on such a constitutionally valid law. (i) The material difference in retirement ages and consequential pension rights upon entry into the service of the Defence Force 26. The Cabinet decision of August 1981 addressed the issues of the retirement ages and pension rights of the seconded Police Officers. It sought to redress the disadvantage which those seconded Police Officers suffered relative to their Public Service counterparts. 27. Upon entry into the Defence Force, Second Division Police Officers had different retirement ages and consequential pension rights to former Public Servants. This was by virtue of sections 8 and 9 of the Regulations above. On entry into the Defence Force the Appellant being a former Public Servant knew that he had the option to work in the Defence Force until age sixty. Second Division Police Officers who had been seconded to the Defence Force could only work up to age fifty-five. Therefore, on entry to the Defence Force the Appellant would have had the advantage of having the option of five years more working life with the increased remuneration and pensionable rights that this would have entailed. This was a material difference between the Appellant and Second Division Police Officers that originated at the time of entry into the service. This difference made them unsuitable as comparators with respect to retirement ages and Page 7 of 11

consequential pension rights even if while working they did the same or similar jobs at the same or similar pay. 28. By way of illustration, take the case of other Defence Force Officers who may have been recruited directly into the Defence Force and who may have attained a rank similar to the Appellant. Such Officers would have to retire at age fifty-five and could not avail themselves of sections 8 and 9 of the Regulations. Even if such Officers worked alongside the Appellant at the same or similar jobs and at the same rate of pay, they could not claim a right to retire at age sixty. The difference in the relevant retirement ages and consequential pension rights of Officers upon their entry into the Defence Force are material matters. Such material differences make them unsuitable as comparators in respect of their retirement ages and consequential pension rights. 29. This difference in the terms and conditions upon entry to the Defence Force is not an academic differentiation since the Appellant did in fact opt to retire at age sixty in 1984. By so doing he confirmed his acceptance of the statutory terms and conditions as set out in sections 8 and 9 of the Regulations which, to his knowledge provided him with materially different terms of retirement and pension rights to relevant seconded Police Officers. 30. The Appellant has never from the inception and/or during the continuation of his service in the Defence Force been similarly circumstanced to Second Division Police Officers who have been seconded from the Police Service in respect of retirement age and consequential pension rights. They were never comparators to each other. Therefore, the August 1981 Cabinet decision which dealt with the retirement age and pension rights of Second Division Police Officers seconded to the Defence Force did not treat equally circumstanced persons in an unequal manner. The Appellant has not made out a case of unequal treatment. (ii) An unfounded collateral attack on sections 8 and 9 of the Regulations 31. The Appellant has never argued that sections 8 and 9 of the Regulations are invalid or unconstitutional; and rightly so. In Josine Johnson and Yuclan Balwant v The Attorney General of Trinidad and Tobago [2009] UKPC 53 the Privy Council was asked to pronounce on the constitutionality of regulations 51 and 52 of the Police Service Regulations and regulations 57 and 58 of the Statutory Authorities Regulations. Whilst observing that these Page 8 of 11

regulations were typical of measures which discriminate against married women and were relics of a bygone age, their Lordships conceded that these regulations were existing law prior to the Constitution and therefore saved from being invalidated as unconstitutional. Similarly, sections 8 and 9 of the Regulations pre-date the Constitution and are saved from being invalidated as unconstitutional. 32. Sections 8 and 9 of the Regulations are the source of the material differentiation between the Appellant and the seconded Police Officers. The August 1981 Cabinet decision was not. That Cabinet decision did not treat equally circumstanced persons in an unequal way. 6 To argue that the differentiation that has been created by the constitutionally valid Regulations is unconstitutional, is a collateral attack on an otherwise valid law. 33. As a matter of interest, it may very well have been argued that the August 1981 Cabinet decision which created a new category of retirement and pension rights was contrary to law and may have been invalid. In that case it may be that the extra working years and remuneration given to the seconded Police Officers might have lacked the force of law. However, no one has sought to deprive them of the benefits they have received and no one might now be able to do so. It would be wrong to correct any such error by creating another error in the form of changing the statutory retirement age and pension rights of seconded Public Servants as the Appellant requests. By way of illustration again, if the Appellant could somehow have prayed in aid a breach of his right to equal treatment by the pay differentiation, it may also be that other equally ranked Officers who had been directly recruited into the Defence Force and who may have done the same or similar jobs, at the same time and at the same pay as the Appellant could also argue that they were being treated unequally and hence claim to be entitled to similar retirement ages and pensionable rights as the Appellant, thus ignoring and by-passing the different statutory terms and conditions that may apply to them. 34. The Appellant has premised his case on the argument that equality of treatment demands equal pay for equal work. He argues that since both he and the seconded Police Officers did the same or similar work for similar pay, it is wrong to treat them differently. This argument is, in my view, overly simplistic and wrong. I say so for the following two reasons: 6 See para 30 above. Page 9 of 11

Firstly, one is not dealing with a right to equal pay. We are considering a right to equality of treatment whereby an aggrieved person must be treated differently from a comparator to have a case in law. As I stated before, 7 the seconded Police Officers were not similarly circumstanced to the Appellant and were therefore not comparators to him. There is no case for unequal treatment and no issue of a right to equal pay can arise. Indeed, some of the cases referred to by the Appellant to advance this issue dealt with the right to equal pay in a specific statutory framework 8 and are of little relevance to the present discussion. This case is not concerned with the right to equal pay but to the different right to equality of treatment by a Public Authority. Different principles apply. Secondly, as I stated before, 9 the source of the alleged inequality in pay is an otherwise constitutionally valid statute which cannot be attacked by a side wind. B. There was no legitimate expectation which gave rise to a right to the enjoyment of property 35. Counsel for the Appellant argued that there was a breach of a legitimate expectation of a substantive benefit which according to the case of Francis Paponette v The Attorney General of Trinidad and Tobago [2010] UKPC 32 is an aspect of the due process of law. Thus the argument ran that the Appellant was deprived of property without due process of law in breach of section 4(a) of the Constitution, the property being the difference in the retirement packages in the sum of $384,195.66. This argument is unsustainable for the following three reasons: Firstly, the only representation that was communicated to the Appellant was that any ruling of the Defence Council regarding the claim of Lt. Col. Luke would be applied to his case. In the final analysis, Lt. Col. Luke s petition was refused as was the case with the Appellant. The Appellant received the same treatment as Lt. Col. Luke. There was no breach of a legitimate expectation. Secondly, the Appellant argues that the first decision of the Defence Council to seek Cabinet approval for the extra payment to him could have given him a legitimate expectation. 7 See paras 25 to 30 above. 8 See for example O Brien v Ministry of Justice [2003] UKSC 6. 9 See paras 31 to 33 above. Page 10 of 11

But this decision (and its reversal) were never communicated to him until some time after he was formally notified of the refusal of his claim. He could have harboured no expectation from a decision which had not been communicated to him until after it had been reversed. Counsel sought to argue that in certain cases one can have the benefit of a representation even if one is unaware of it. This applies in cases of statements made to the public at large or in cases of policy statements affecting persons generally. 10 The first decision of the Defence Council did not fall into either category. That decision was not a statement made to the public at large nor did it represent a policy of the Defence Council; in fact the first decision was one made against legal advice and if anything would have been an exception to a policy against making such payments. In any event, by the time the Appellant became aware of the statement it had been reversed and did not represent the policy of the Defence Council. Thirdly, the concept of legitimate expectation is one to which the principles of judicial review apply. The appellant was far out of time to query this administrative decision by way of judicial review (about four years late). Further, and in any event, relief in judicial review proceedings is discretionary; so that even if the Appellant s claim for breach of a legitimate expectation had been properly prosecuted by way of judicial review proceedings, the Appellant may not have been granted compensatory relief (or indeed any relief). Thus the Appellant did not as yet have a right to receive the difference in the compensatory packages claimed ($384,195.66) or any other sum. There is no case of the Appellant being denied a right to property at this stage, as is claimed in this motion. 36. In these circumstances the claim for breach of section 4(a) of the Constitution has not been made out. CONCLUSION 37. The Appellant s appeal is dismissed. The parties will be heard on the issue of costs. G. Smith Justice of Appeal 10 See De Smith s Judicial Review 6 th Edition at 12-037 to 12-039. Page 11 of 11