By Susan Mohammed From Trinidad Express

Justice Frank Seepersad deemed the constitutional motion for malicious prosecution taken by Bakr “inappropriate”.

Bakr filed the motion after he and Brent “Big Brent” Miller had a charge of murder discontinued by the office of the Director of Public Prosecution in October 2010.

Bakr and Miller had been charged with the murder of mechanic Israel Sammy on September 29 after Coroner Nalini Singh sitting the Port of Spain Magistrates’ Court concluded there was enough evidence to charge them with the killing.

Sammy, of Dacca Street, Boissiere Village, Maraval, was taken from his home by masked men around 2 a.m., beaten and shot dead behind his home on May 20, 1998.

In delivering his ruling, Seepersad said “the circumstances of the instant action are inappropriate and amounts to an abuse of the Court’s process.

The claimant is to pay to the Defendant the costs of this application which is to be assessed in default of agreement. Bakr was present in court for the ruling in the Hall of Justice, Port of Spain.

The charges was dropped after the DPP Roger Gaspard said there was not enough evidence to proceed with the case. Gaspard had said he was of the view the case did not have any “evidential basis” for the State to move forward, and that the evidence against both men was insufficient.

Seepersad said in his ruling that Gaspard had acted “within the parameters of his authority” when he discontinued the charge Bakr.

The following is the judgement of the court

YASIN ABU BAKR (Claimant) and THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Before the Honourable Mr. Justice Frank Seepersad

Appearances:

1. Mr. J. Sookoo instructed by D. Helwig for the Claimant

2. Mr. J. Singh instructed by Ms. Almorales and Ms. Redhead for the Defendant.

Date of Delivery: 29th June, 2015

DECISION

1. Before the Court for its determination is the Defendant’s Notice of Application filed on the 27th February, 2015 by virtue the Defendant sought the following orders:

a. That the fixed date claim form filed on 29th September, 2014 be struck out in its entirety against the Defendant pursuant to Part 26.2(1)(b) of the Civil Proceedings Rules 1998 as amended on the basis that it is an abuse of process;

b. That the affidavit filed by the Claimant on 29th September, 2015 be stuck out in its entirety;

c. That the Claimant pays the costs of this application to the Defendant.

Procedural History

2. The Claimant instituted this action by filing a fixed date claim form filed pursuant to Part 56.7 of the Civil Proceedings Rules (1998) as amended (the CPR on the 29th September, 2014. In support of same the Claimant filed an affidavit of even date and by order of the court dated 25th November, 2014 he filed a supplemental affidavit on the 26th November, 2014. In the said action the Claimant has sought the following reliefs:

a. A declaration that the actions of Ms. Nalini Singh, the St. George West County Port of Spain Coroner (hereinafter the Coroner), in her conduct of the inquest into the death of Mr. Israel Sammy and in her pursuit of the prosecution of the Claimant on charger of murder were unconstitutional;

b. An order quashing the finding of the aforementioned Coroner that at the close of the inquest there were sufficient grounds for charging the Claimant with the murder of Mr. Israel Sammy;

c. Damages to compensate the Claimant for the losses he has incurred, including loss of liberty and damage to reputation, as a result of the aforementioned unconstitutional actions;

d. Such further and/or other reliefs, orders or directions as the Court may in exercise of its jurisdiction under section 14 of the Constitution and under its inherent jurisdiction consider appropriate for the purpose of enforcing and protecting or securing the enforcement and protection of the Claimant’s said rights;

e. Costs.

3. The Defendant sought and obtained several extensions for the filing of a defence and /or affidavits in reply and then filed the application dated 27th February, 2015.

Procedure in relation to administrative orders

4. Part 56.7 of the CPR outlines the procedure that is to be adopted for the making of an application for an administrative order. The Claimant has sought pursuant to section 14 of the Constitution of the Republic of Trinidad and Tobago redress for an alleged infringement of his constitutional rights. The law recognizes as was stated by Diplock LJ in Harrikissoon v. the Attorney General of Trinidad and Tobago (1980) AC 265 at page 268 letters B to D, that “the right to apply to the High Court under sec. 6 of the Constitution for redress when any human right or fundamental freedom is or is likely to be contravened, is an important safeguard of those rights and freedoms.” Diplock LJ went on to state at letters C and E at page 268:

“Its value will be diminished if it is allowed to be misused as a general substitute for the normal procedures for involving judicial control of administrative action. In an originating application…the mere allegation that a human right or fundamental freedom of the application has been or is likely to be contravened is not of itself sufficient…if it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the Court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action which involves non contravention of any human right or fundamental freedom.”

5. The Court must always ensure that the claim being advanced before it, is not frivolous or vexatious or an abuse of its process and the making of an application for an administrative order under section 14(1) of the constitution should be engaged where (1) there has been a breach of a constitutional right (ii) there is no factual dispute and the matter in dispute involves a question of law and (iii) where no parallel judicial remedy is available. The Claimant’s application therefore has to be considered in the context of the aforementioned criteria.

Was there a breach of a constitutional right?

6. If the Claimant can establish that his rights to liberty was deprived without due process of the law, then he is entitled to invoke the jurisdiction of the Court under Section 14 of the Constitution.

Is there a dispute as to facts or is the dispute a question of law?

7. In the case of Jaroo v. The Attorney General of Trinidad and Tobago (2002) UKPC 5 at paragraph 36 the Board, in a judgment delivered by Lord Hope of Craighead, said as follows:

“Their Lordships wish to emphasize that the originating motion procedure under section 14(1) is appropriate for use in cases where the facts are not in dispute and questions of law only are in issue. It is wholly unsuitable in cases which depend for their decision on the resolution of disputes as to fact. Disputes of that kind must be resolved by using the procedures which are available in the ordinary courts under the common law.”

8. Counsel for the Defendant submitted that the claim before the Court requires the evidence to be tested so as to lead to determination as to whether or not “the officers” had acted within the boundaries of their power, when the Claimant was detained. The Court is of the view that this submission is devoid of merit and the matter does not call for a resolution of material facts but involves a question of law as consideration has to be given to the powers vested in a coroner and whether there was a valid exercise of authority by the said coroner.

Is there a parallel remedy?

9. In Jaroo (supra) at paragraph 39, Lord Hope of Craighead went on to state as follows:

“Their Lordships respectfully agree with the Court of Appeal that, before he resorts to this procedure, the applicant must consider the true nature of the right allegedly contravened. He must also consider whether, having regard to all the circumstances of the case, some other procedure either under the common law or pursuant to statute might not more conveniently be invoked. If another such procedure is available, resort to the procedure by way of originating motion will be inappropriate and it will be an abuse of the process to resort to it. If, as in this case, it becomes clear after the motion has been filed that the use of the procedure is no longer appropriate, steps should be taken without delay to withdraw the motion from the High Court as its continued use in such circumstances will also be an abuse.”

10. The Claimant has instituted a civil claim for malicious prosecution in action CV 2014-03547. The matter is docketed before this Court and is premised upon the same facts as are outlined in the instant application under section 14 of the constitution. The Claimant submitted that the instant claim and the malicious prosecution claim differ in one important respect in that the instant claim seeks:

“An order quashing the finding of the aforementioned Coroner that at the close of the inquest there were sufficient grounds for charging the Claimant with the murder of Mr. Israel Sammy.”

11. It cannot be disputed that a Corner is empowered to find that there are sufficient grounds for the institution of any relevant charge that accords with the evidence adduced during the inquest. The issue as to whether that evidence was in fact sufficient is not an issue that involves Section 14 of the Constitution. That is an issue that could have been addressed by way of judicial review. No such action was however filed within the required time period. While the existence of a parallel remedy does not automatically render a constitutional motion an abuse of process, there are no exceptional circumstances or special features of the complaint in this case so as to justify the course that has been adopted.

12. The decision of the Coroner was made within the confines of due process. An inquest was conducted and there is no evidence to suggest that the process engaged by the Coroner was flawed or that the said process was conducted in a manner which resulted in a contravention of the Claimant’s constitutionally enshrined rights.

13. The Claimant submitted that he can proceed with two separate claims, premised on two separate versions of fact, with the primary difference being the fact of malice which would be known only to the Defendant and the Coroner. This position cannot be condoned and litigation cannot be conducted on such an ad hoc basis with the hope that “something must stick”.

14. The Claimant also submitted that there is value in quashing the Corner’s order and that the quashing of same bears significance that is not properly met in damages. It was further submitted that the quashing of the Coroner’s order as a primary remedy is not available under malicious prosecution proceedings. After the Coroner directed that the Claimant should be charged with the offence of murder, the Director of Public Prosecutions, acting within the parameters of his authority discontinued the charge as against the Claimant. There is therefore no order by the Corner that remains on record as suggested by the Claimant and no practical benefit can be derived from the nullification or removal of the Coroner’s order.

15. In the circumstances the instant action is inappropriate and amounts to an abuse of the Court’s process. For the reasons that have been outlined the fixed date claim form filed herein on the 29th September 2014 and the affidavit filed in support thereof are hereby struck out pursuant to Part 26.2 (1) b of the Civil Proceedings Rules 1998 (as amended).

16. The Claimant is to pay to the Defendant the costs of this application which is to be assessed in default of agreement.

…………………………

FRANK SEEPERSAD

JUDGE

IMAGE: YASIN ABU BAKR: Jamaat Al-Muslimeen Leader, left, leaves the Hall of Justice in Port-of-Spain recently.

For more on this story go to: http://www.trinidadexpress.com/20150629/news/bakr-loses-wrongful-arrest-lawsuit-must-pay-state