Gary Nelson Appellant v [1] Attorney General [2] Colin Derrick, Minister of Justice [3] The Police Service Commission Respondents [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: Blenman JA,Michel JA,Mitchell JA,Louise Esther Blenman,Justice of Appeal,Mario Michel,Don Mitchell,Justice of Appeal [Ag.]
• Judgment Date: 26 May 2014
• Judgment citation (vLex): [2014] ECSC J0526-1
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: ANUHCVAP2012/0001
• Date: 26 May 2014

[2014] ECSC J0526-1

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mr. Don Mitchell Justice of Appeal [Ag.]

ANUHCVAP2012/0001

Between:

Gary Nelson

Appellant

and

[1] The Attorney General

[2] Colin Derrick, Minister of Justice

[3] The Police Service Commission

Respondents

Cases considered:

Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155

Dattatreya Panday v The Judicial and Legal Service Commission [2008] UKPC 52

Thomas v Attorney General (1981) 32 WIR 375

Roberts (Kemp) v Attorney General (1994) 52 WIR 273

Ridge v Baldwin and Others [1964] AC 40

Horace Fraser v Judicial and Legal Services Commission et al [2008] UKPC 25

Nicholson v Haldimand-Norfolk Regional Police Commissioners [1979] 1 SCR 311

Jada Construction Caribbean Limited v The Landing Limited Saint Lucia , High Court Civil Appeal SLUHCVAP2009/0011 (delivered 8th March 2011, unreported)

R v Secretary of State for the Home Department Ex parte Doody [1994] 1 AC 531

Civil appeal — Contract — Antigua and Barbuda Constitution Order 1981 — Section 12(1) of the Police Act — Police Service Commission — Dismissal of Commissioner of Police on contract during probationary period — Judicial Review — Whether trial judge erred in concluding that there was a binding contract where the contract was an unexecuted contract — Whether trial judge erred in concluding that section 12(1) of the Police Act was inapplicable — Whether trial judge erred in concluding that the Police Service Commission acted lawfully — Whether trial judge was correct in finding that there was no basis to conclude that the Commission acted irrationally or unreasonably in dismissing the Commissioner — Whether trial judge erred in concluding that though the Commission was under an obligation to observe the rules of procedural fairness that duty was not breached — Whether Commissioner had a legitimate expectation to be employed for a period of two years — Whether the learned trial judge erred in her award of costs

The appellant was the former Commissioner of Police of Antigua and Barbuda. The post was offered to the appellant on a two year contract with a specific clause contained therein which stated that the Commissioner's post was subject to a successful probationary period of six months. This clause was included in all drafts of the contract sent to the appellant, who, at the time of receiving these drafts, resided in Canada. The appellant objected to this clause being included in the contract. However, the Government of Antigua and Barbuda ("Government") maintained that this clause was non-negotiable. Despite the Government's position in relation to the probation period, the appellant travelled to Antigua and Barbuda to take up the position as Commissioner of Police.

On 29^th February 2008, the appellant was sworn into the office of Commissioner of Police of Antigua and Barbuda and commenced duties the following day even though no formal contract had been signed. On 1^st April 2008, he received his letter of appointment from the Chief Establishment Officer. A few months after he had taken up his appointment the appellant received an unexecuted contract for his signature which contained the similar clause which dealt with the six month probation period. The appellant again objected to the inclusion of this clause. By that time the Government was dissatisfied with the appellant's performance and in this regard the Minister of Justice and the Chairman of the Commission had held separate meetings with the appellant. Subsequently, the Police Service Commission ("Commission"), by letter dated 28^th August 2008, terminated the appellant's services before the probationary period had expired on the basis of his alleged unsatisfactory performance of duties.

The appellant applied for judicial review of this decision taken by the Commission. He alleged that the Commission and the Minister of Justice had both acted irrationally and unlawfully in relation to the termination of his appointment. Further, he complained that he had a legitimate expectation to be employed for a period of two years and sought an order to this effect. He sought an order that he had a legitimate expectation to a fair hearing and also sought aggravated and exemplary damages together with costs.

The learned trial judge held that the appellant was employed on contract for a period of two years subject to a probationary period of six months. As such he could not have had a legitimate expectation to be employed for a period of two years. The judge held that there was no basis to conclude that the Commission acted unlawfully and or irrationally in terminating the appellant's services. Further, learned trial judge held that the Commission was under an obligation to observe the rules of procedural fairness. This duty was discharged by the meetings held with the appellant; accordingly the learned trial judge dismissed the appellant's claim and held that he was not entitled to any of the reliefs sought. An award of costs was made against the appellant.

The appellant appealed the decision of the learned trial judge on a number of grounds including that (1) the judge erred in concluding that there was a concluded contract between him and the Government of Antigua and Barbuda; (2) the judge erred in concluding that section 12(1) of the Police Act was inapplicable to the case; (3) the judge erred in concluding that his dismissal was lawful; (4) the judge erred in concluding that the Commission did not act irrationally or unreasonably; (5) the judge erred in concluding that he was entitled to procedural fairness but that in any event in the circumstances of the case it was not breached; and (6) the judge erred in concluding that he had no legitimate expectation to be employed for a period of two years.

Held: dismissing the appeal; awarding costs to the respondents of two thirds of the costs in the court below; and dismissing the Commission's cross-appeal, that:

• 1. A court, in determining whether or not a binding contract exists, and if so, upon what terms can consider what was communicated between the parties by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. A court may then be more willing to infer that the parties have reached a binding contract where one party to the continuing negotiations renders partial performance. The learned trial judge had the evidence of the appellant's partial performance of some of his obligations under the unexecuted contract, such as his completion of a medical examination. In addition, the appellant had received his stipulated salary under the unexecuted contract and, at the termination of his contract, claimed for the reimbursement of his airfare which was a clause provided for in the unexecuted contract. Thus, it is fair to conclude that, due to the conduct of the appellant and the communication between the parties, there was a binding agreement reached which had as its basis the unexecuted contract.

  RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH & Co KG (UK Production) [2010] 1 WLR 753 applied.

• 2. Section 12(1) of the Police Act states that certain police officers shall be on probation during the first two years after their appointment. The appellant was employed on a contract for a period of two years with a clear probation period of six months. It therefore follows, that as a matter of both law and logic, section 12(1) of the Police Act could not have been within the contemplation of the parties as being applicable to the appellant. The parties had clearly contracted out of section 12(1) of the Police Act. This ground of appeal must accordingly fail.

  Section 12(1) of the Police Act, Cap. 330, Revised Laws of Antigua and Barbuda 1992 distinguished.

• 3. Section 105 of the Antigua and Barbuda Constitution Order 1981 ("Constitution") gives power to the Commission to appoint persons to hold or act in offices in the Police Force and to remove such persons. The section states further that consultation must be done with the Prime Minister before a Commissioner can be appointed. Section 18 of the Interpretation Act states that words in an enactment authorising the appointment of a person to any office shall be deemed also to confer on the authority in whom the power of appointment is vested, the discretion of the authority, to remove that person. Section 105 of the Constitution and section 18 of the Interpretation Act must be read together. The conjoint effect of this gives the Commission the power to remove the appellant after consultation with the Prime Minister. The learned trial judge had overwhelming evidence before her which led her to conclude that the decision to remove the appellant was taken by the Commission. This Court can in no way invalidate her assessment of the facts and evidence in the case and her finding that the appellant's services were terminated by the Commission with the concurrence of the Prime Minister. Therefore, this ground of appeal fails.

  Section 105 of the Antigua and Barbuda Constitution Order 1981 applied; Section 18 of the Interpretation Act, Cap. 224, Revised Laws of Antigua and Barbuda 1992applied; Jada Construction Caribbean Limited v The Landing Limited Saint Lucia, High Court Civil Appeal SLUHCVAP2009/0011 (delivered 8th March 2011, unreported) followed; Chiverton Construction Limited et al v Scrub Island Development Group Limited et al Territory of the British Virgin Islands High Court Civil Appeal BVIHCVAP2009/0028 (delivered 19th September 2011, unreported) followed.

• 4. It is the law that a person who wishes to...