Annella Marella James Claimant v Chief Personnel Officer of St. Vincent & the Grenadines Mr. Tyrone Burke First Defendant Attorney General of St. Vincent and The Grenadines Second Defendant The Accountant General of St. Vincent & the Grenadines Third Defendant [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Court: High Court (Saint Vincent)
• Judge: THOM, J
• Judgment Date: 26 July 2010
• Judgment citation (vLex): [2010] ECSC J0726-3
• Docket Number: CLAIM NO. 105 OF 2009
• Date: 26 July 2010

[2010] ECSC J0726-3

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO. 105 OF 2009

Between:

In the Matter of Sections 5, 6(1), 16 and 83 of the Constitution of St. Vincent and the Grenadines

And

In the Matter of Provision 2.19 of the Civil Service Orders for the Public Service of St. Vincent and the Grenadines

And

In the Matter of an Application by Annella Marella James for Leave to Apply for Judicial Review of the Decision of the 4^TH March 2009 of Chief Personnel Officer of Saint Vincent & the Grenadines Purporting to Temporarily Assign the Applicant to the Ministy of Housing, Informal Settlements, Lands and Surveys, Physical Planning and Local Government With Effect from Thursday March 5^TH 2009 to Friday September 4^TH 2009 And For Administrative Orders

And

In the Matter of an Application by Annella Marella James for Leave to Make a Claim for Judicial Review of the Decision of the Chief Personnel Officer Mr. Tyrone Burke Contained in the Letter Dated April 2^ND 2009 Instructing the Accountant General to Make Deducttion from the Salary of the Applicant

Annella Marella James

Claimant

and

Chief Personnel Officer of St. Vincent & the Grenadines Mr. Tyrone Burke

First Defendant

The Attorney General of St. Vincent And The Grenadines

Second Defendant

The Accountant General of St. Vincent & the Grenadines

Third Defendant

Appearances:

Mr. Keith Scotland and Mrs. Sharon Cummings for the Applicant.

Mr. Anthony Astaphan S.C. and Mr. Grahame Boilers for the Respondents

THOM, J

1 Pursuant to leave granted by the Court on May 29, 2009 Ms. James seeks judicial review of the decisions contained in the letters dated March 4, 2009 and April 2, 2009 both of which were written by the Chief Personnel Officer.

BACKGROUND

2 Ms. James holds the office of Crown Counsel I in the Attorney-General's Chambers.

3 Her letter of appointment reads as follows:

"Ms. Annella James

u.f.s. Honourable Attorney-General

Dear Madam,

I have the honour to inform you that the Judicial and Legal Services Commission has given approval for your appointment to a post of Crown Counsel I, Ministry of

Legal Affairs with effect from December 4,2006.

• 2. The post is pensionable and you will receive salary at the rate of $36,276 per annum in scale $36,276 x $2,028 $46,416 in Grade 8.

• 3. You will be responsible to the Honourable Attorney-General or any person authorized to act on her behalf for the proper performance of your official duties.

• 4. You will be subject to the Public Service Regulations, the Civil Service Orders, the Financial and Stores Rules, the Rules of the Judicial andLegal Services Commission and to all Acts and Subsidiary Legislation in force in the State. You will be liable to all taxation imposed by local enactment.

• 5. You will be liable to transfer to any post or equivalent grade within the Legal Service.

I have the honour to be Madam

Chief Personnel Officer."

4 By letter dated March 2, 2009 the Permanent Secretary (Ag.) in the Ministry of Housing requested the assignment of a legal officer to the Ministry of Housing to provide assistance and advice on legal matters which included revision of the Town and Country Planning Act, Building Code and Guidelines, the Kingstown Board Bye-Laws, and the legislative framework of the Lands and Surveys Department.

5 On March 3, 2009 the Assistant Secretary in the Attorney-General's Chambers informed Ms. James that the Attorney-General had instructed that Ms. James should provide some assistance to the Ministry of Housing.

6 Ms. James by memorandum dated March 3, 2009 addressed to the Assistant Secretary requested that the Attorney-General put her instructions into writing.

7 On March 4, 2009 the Chief Personnel Officer wrote to Ms. James informing her that she was temporarily assigned to the Ministry of Housing for the period March 5, 2009 to September 4, 2009. The letter reads as follows:

"Ms. Annella James

u.f.s. Honourable Attorney-General

Dear Madam,

In accordance with the many demands on the Ministry of Legal Affairs for the provision of legal advice to the Ministries you are temporarily assigned with effect from Thursday March 5, 2009 to Friday September 4, 2009 to the Ministry of Housing, Informal Human Settlement, Lands and Survey, Physical Planning and Local Government.

You will report to Mr. Kenrick Glynne Permanent Secretary (Ag.) Ministry of Housing, Informal Human Settlement, Lands and Survey, Physical Planning and Local Government. This notwithstanding you will continue to be responsible to the Honourable Attorney-General or any person authorized to act on her behalf for the proper performance of your official duties,

This assignment does not affect your appointment to the post of Crown Counsel/Ministry of Legal Affairs. Please refer to previous department letters dated January 8, 2007 and December 9, 2008 respectively for applicable terms and conditions. You will return to your substantive position at the end of the assignment.

Yours faithfully

Tyrone Burke (Mr.)

Chief Personnel Officer (Ag.)"

8 On March 5, 2009 Ms. James reported to the Permanent Secretary, Ministry of Housing. She went to visit the Chief Personnel Officer and did not return to the Ministry of Housing. She reported to the Attorney-General's Chambers. Ms. James submitted sick leave certificates for the period March 9–20, and March 25–27, 2009.

9 By letter dated March 5, 2009 addressed to the Chief Personnel Officer, Ms. James enquired who had authorized her assignment to the Ministry of Housing. There being no response from the Chief Personnel Officer, on March 19, 2009 Ms. James' solicitor Mrs. S. Cummings wrote to the Chief Personnel Officer requesting inter alia a response to Ms. James' letter of March 5,2009.

10 By letter dated March 20, 2009 the Chief Personnel Officer informed Ms. James' solicitor that if Ms. James failed to report for her assignment the necessary action would be taken against her.

11 On March 26, 2009 the Permanent Secretary in the Ministry of Housing informed the Chief Personnel Officer that Ms. James did not perform the duties.

12 On April 2, 2009 the Chief Personnel Officer wrote to Ms. James as follows:

"Ms. Annella James

u.f.s. P.S./Ministry of Housing

Dear Madam,

By memorandum dated March 26, 2009, the Permanent Secretary/Ministry of Housing, Informal Human Settlement, Land and Surveys, Physical Planning and Local Government informed the Service Commission Department that you have not taken up your assignment to date.

Please note that the Accountant General has been informed and instructed to make the relevant deduction from your salary.

Yours faithfully,

Tyrone Burke (Mr.)

Chief Personnel Officer (Ag.)

THE APPLICATION

13 Affidavits were filed by Ms. James in support of her Application for Judicial Review. Affidavits in response were filed by the Attorney-General and the Chief Personnel Officer. Both sides declined cross-examination. Ms. James in her application for judicial review alleges that the decision in the letter of March 4, 2009 is illegal, null and void and in excess of the powers of the office of the Chief Personnel Officer; the decision was procedurally improper in that the Applicant being appointed to the Office of Crown Counsel, an office within Section 83 of the Constitution the decision was made without consideration of the procedure to be followed in the assignment of such an officer.

14 The decision in the letter of April 2, 2009, is procedurally improper, in breach of the rules of natural justice, in excess of the powers of the Chief Personnel Officer and in contravention of Section 6 of the Constitution.

ISSUES:

15 The issues to be determined are:

• (i) Whether an officer who is appointed to an office in the Attorney-General's Chambers under Section 83 of the Constitution can be required to perform legalduties at a Ministry other than the Attorney-General's when the officer is neither transferred nor seconded with the approval of the Judicial and Legal Services Commission (JLSC).

• (ii) If such an officer can be required to perform duties at a Ministry other than at the Attorney-General's Chambers, who is authorized to require the Officer to perform such duties?

• (iii) Whether the decision to make deduction from the salary of such an officer before disciplinary action has been taken against such officer is procedurally improper, in excess of the powers of the Chief Personnel Officer, in breach of the rules of natural justice and in contravention of Section 6 of the Constitution.

APPLICANT'S SUBMISSIONS

ISSUE NO. 1

16 Learned Counsel for Ms. James submitted that Ms. James being an officer appointed pursuant to Section 83 of the Constitution that the legal framework which governs the appointment and terms and conditions of service makes no provision for assignment of Ms. James outside of the substantive Ministry to which she has been appointed. Provisions are made for transfer and secondment of Ms. James. The Regulations contemplate that if there is to be any temporary assignment of such an officer other than an acting appointment with the intent of having the officer resort to his or her substantive post then that must be effected by way of secondment with the authorization of the appropriate Service Commission in this case the JLSC. Learned Counsel further submitted that it will render ineffective the protection afforded by Section 83 of the Constitution and place the power of removal in the hands of the executive. Learned Counsel referred the Court to Sections 83 and 105 of the Constitution and Sections 2.16, 2. 17 and 2.19 of the Civil Service Orders and the cases ofDver v Williams, Thomas v Attorney-General of Trinidad and Tobago (1982) A.C. p. 113 and Rees and Others v Crane [1994] 1 AER p. 833.

17 Learned Counsel further submitted that Section 3.1 of the Civil Service Orders is not applicable to this case...