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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
SAN FERNANDO
Claim No. CV2015-03939
BETWEEN
RAVENDRA KEMAT BRIDGLAL
Claimant
AND
THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO
Defendant
Before the Honourable Madam Justice Donaldson-Honeywell.
Dated the 7th June, 2016
Appearances:
Mr. Anand Ramlogan SC, Ms Jayanti Lutchmedial, Mr. Chaitram Bhola and Mr. Kent Samlal for
the Claimant
Mrs Tinuke Gibbons-Glen, Ms Leah Thompson, Ms. Shanna Lutchmansingh and Ms. Ryanka
Ragbir for the Defendant
DECISION
Introduction and Background Facts:
1. The Claimant, by way of Constitutional Motion, seeks redress for an alleged violation by
the Defendant of his rights to protection of the law arising from circumstances whereby he
was deprived of his property, namely cash. The cash was seized by the State pursuant to
an investigation under the Proceeds of Crime Act, Chap. 1:27 [POCA]. POCA is a
central cog in the State’s new and evolving legislative machinery introduced to further the
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globally recognised goal of defeating money-laundering and other offences that fuel the
growth of organized crime and terrorism worldwide.
2. The Claimant was detained by airport security personnel on 28 January, 2014. Upon
investigation Seventy-Four Thousand United States Dollars (US$74,000.00) undeclared
cash found in his suitcase was seized pursuant to S.154 of the Customs Act, Chap. 78:01
(as amended) and the POCA.
3. The Investigating Customs and Excise Officer III, Richard Smith applied to a Magistrate
for a Detention Order for the seized sum of money pursuant to S.38 (2) POCA and it was
granted on 31 January, 2014. During the course of investigations, Mr. Smith applied for
five more detention orders pursuant to S.38 (3) POCA which were granted by the
Magistrate. The investigation was completed by July, 2015 and Mr. Smith applied for the
release of cash pursuant to S.38 (7) (a) (ii) of POCA. The Magistrate granted the
application for release on 23 July, 2015.
4. More than one month after, to the filing of the present claim, on 16th November, 2015, the
principal sum was on December 23, 2015 returned to the Claimant without the interest,
which still remains due. The Claimant now seeks the following redress:
a. A declaration that the Claimant’s right to use and enjoy his property and not be
deprived thereof except by due process of law under S.4(a) of the Constitution
was violated and breached;
b. A declaration that the Claimant’s right to protection of the law under S.4(b) of the
Constitution was breached by virtue of the failure of the Defendant to make
Regulations to prescribe the necessary forms under S.38(4C) and/or (7A) POCA;
and
c. Damages.
5. An identical claim was filed against the State in San Fernando by Primnath Geelal and
Dhanrajie Geelal. The claim has not yet been determined but is awaiting a decision of the
Court of Appeal on disclosure before the trial continues.
6. The main thrust of the Claimant’s complaint is that his rights not to be deprived of his
property without due process and protection of the law have been breached as the
Magistrates had no power to make the detention orders in the absence of prescribed forms.
Furthermore, the Claimant contends that with or without forms the Magistrate was required
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to state the grounds for detention so that, in keeping with Natural Justice, the Claimant
could have sufficient information to know what to put in an application for release of the
funds on the basis that detention was no longer justified. The Claimant also submits that
the delay in returning the cash after the Magistrate ordered it released and the continued
failure of the Defendant to pay interest thereon as prescribed by law is also
unconstitutional.
The POCA provisions:
38. “(1) A Customs and Excise Officer of the rank of Grade III or higher, or a Police
Officer of the rank of Sergeant or higher, may seize from any person and in accordance
with this section, detain any cash in accordance with this section if its amount is more than
the prescribed sum.
(1A) A Customs and Excise Officer or Police Officer referred to in subsection (1), may
seize and detain cash only, where he has reason to believe that the cash directly or
indirectly represents any person’s proceeds of a specified offence, or is intended by any
person for use in the commission of such an offence.
(2) Cash seized by virtue of this section shall not be detained for more than ninety-six hours
unless its continued detention is detention authorised by an order made by a Magistrate,
and no such order shall be made unless the Magistrate is satisfied—
(a) That there are reasonable grounds for the suspicion mentioned in subsection
(1); and
(b) That continued detention of the cash is justified while its origin or derivation is
further investigated or consideration is given to the institution, whether in Trinidad
and Tobago or elsewhere, of criminal proceedings against any person for an
offence with which the cash is connected.
(3) Any order under subsection (2) shall authorise the continued detention of the cash to
which it relates for such period, not exceeding three months beginning with the date of the
order as may be specified in the order, and a Magistrate, if satisfied as to the matters
mentioned in that subsection, may thereafter from time to time by order authorise the
further detention of the cash but so that—
(a) No period of detention specified in such an order shall exceed three months
beginning with the date of the order; and
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(b) The total period of detention shall not exceed two years from the date of the
order under subsection (2).
(4) Any application for an order under subsection (2) or (3) shall be made in the prescribed
form before a Magistrate by the Customs and Excise Officer or a Police Officer of the
grade or rank referred to in subsection (1).
(4A) An application for an order under subsection (2) shall be made ex -parte.
(4B) Where an order has been granted under subsection (2) or (3), the order shall be
served as soon as reasonably practicable on—
(a) The person by, or on whose behalf the cash was being imported or exported, if
known; or
(b) The person from whom the cash was seized.
(4C) An order referred to in subsections (1) and (2) shall be in the prescribed form.
(5) Any cash subject to continued detention under subsection (3) shall, unless required as
evidence of an offence, immediately upon an order for such detention being made, be
delivered into the care of the Comptroller of Accounts who shall forthwith deposit it into
an interest bearing account.
(6) An order made under subsection (2) shall provide for detention of cash seized for the
period stated in the order until—
(a) The expiration of the period;
(b) The release of the cash by the Court; or
(c) The release of the cash by the Comptroller of Accounts.
(7) At any time while cash is detained under this section—
(a) A Magistrate may direct its release if satisfied—
(i) On application made by the person from whom it was seized or a person
by or on whose behalf it was being imported or exported, that there are no,
or are no longer any grounds for its detention as are mentioned in
subsection (2); or
(ii) On an application made by any other person, that detention of the cash
is not for that or any other reason justified; and
(b) The Comptroller of Accounts may, upon the written application of the applicant
for the order, release the cash together with any interest that
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may have accrued, if satisfied that the detention is no longer justified.
(7A) An application for the release of cash detained under subsection (7) shall be made
in the prescribed form.
(8) Where the cash is to be released under subsection (6) (b), the Comptroller of Accounts
shall first notify the Magistrate under whose order it is being detained.” [Emphasis added
to highlight the new provisions introduced in January 2015; one year after the
Claimant’s cash was first seized]
Claimant’s contentions:
7. The issues of fact relied upon by the Claimant in seeking relief are largely not in dispute.
A comprehensive synopsis of the Claimant’s case is provided in the written closing
submission of the Defendant as follows:
(a) Section 38 of the Proceeds of Crime Act (POCA), as amended by the Finance
Act, 2015 authorizes a Customs Officer of the rank of Grade III or higher to seize
and detain cash in certain circumstances…
(b) An aggrieved citizen whose cash has been detained pursuant to an ex-parte order
made under section 38 (2) of the POCA has the right under section 38 (7) to apply
to the Magistrate for it to be released;
(c) By Legal Notice No. 2 of 2015, regulations were made and forms were prescribed
and published under section 38 (2) and (3) to facilitate the application for an ex-
parte order to authorize the initial detention of cash seized by any subsequent
detention orders;
(d) Section 7 of the Finance Act 2015 amended the POCA by, inter alia, inserting
that an application for the release of cash detained under the Act shall be made in
the prescribed form;
(e) Regulations were not made to prescribe a form pursuant to Section 38 (4B) to
enable a Magistrate to make an ex-parte order in the form intended and mandatorily
prescribed by Parliament until September 3rd, 2015. There was therefore no
prescribed form for the ex-parte order authorizing the detention of a citizen’s cash
seized by the police under the POCA;
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(f) Regulations were made to prescribe a form under Section 38 (7A) on September
3rd, 2015. Prior to this there was no form by which the Claimant whose cash had
been seized and purportedly detained in accordance with Section 38 could make an
application under Section 38 (7) to challenge the initial detention and/or further
subsequent detention of his cash;
(g) The ex-parte order made by the Magistrate on 31st day of January, 2014 authorizing
the detention of the Claimant’s cash does not contain the grounds for the detention
or any reason for the making of the order. The Claimant was therefore, in any event
unable to exercise his right to apply for the release of the cash as he is not aware of
the basis for same;
(h) By Section 38 (7) the Claimant is required to prove that “there are no or no longer
any grounds for its detention as are mentioned in subsection (2).” The Claimant is
unable to discharge this burden of proof because the procedures which existed
under the POCA did not allow him to know the basis and/or reason and/or
justification and/or grounds for the detention orders.
(i) Thus even if there was a prescribed form under Section 38 (7A), the Claimant was
not in a position to make a meaningful application to have his cash released.
(j) Subsequent to the passage and coming into effect of the Finance Act 2015 and the
amendments made therein to the POCA, the Magistrate had no jurisdiction to make
a detention order in the absence of regulations prescribing the forms and content of
the detention order under Sections 38 (2) and (3). Magistrates are creatures of
statute and hence derive their powers in this regard under the POCA.
(k) The continued detention orders granted after the 27th day of January, 2015 were
therefore null and void and of no legal effect as they were not in a form prescribed
and approved by Parliament as intended;
(l) Alternatively, the detention order and all subsequent detention orders were invalid
because they did not contain the grounds of the detention thereby defeating the
constitutional procedural safeguard given to the Claimant by Parliament to be able
to apply to have the order discharged and his cash released;
(m) In the circumstances, the right given to the Claimant under Section 38 (7) was
meaningless as the failure of the State to prescribe a form for making the relevant
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application and/or failure to disclose the reason and/or grounds and/or basis for the
detention order effectively compromised and or undermined his ability to satisfy
the statutory preconditions that would enable the court to make an order for the
release of his cash; the Claimant was unable to mount a challenge to the grounds
for the detention of his cash as he is not aware of the said grounds upon which the
said detention was based;
(n) The failure to balance the right of the State to seize the Claimant’s cash pursuant to
an ex-parte order with his right to apply to have his cash discharged is illegal and
unconstitutional. There is in fact no balance because while the police can apply for
a detention order, the Claimant cannot apply for a discharge to have his cash
returned.
The Issues:
8. The primary issue in the present case is whether the detention of the Claimant’s cash by
order of the Magistrates in the absence of prescribed forms and/or with the omission of
grounds in the orders violated the Claimant’s rights to due process and protection of the
law under Sections 4(a) and 4(b) of the Constitution.
9. Secondly, a determination must be made as to whether the delay in returning the cash to
the Claimant amounted to a breach of his Constitutional rights.
The Evidence:
10. The evidence, herein, comprised the Claimant’s initial Affidavit dated November 16, 2015
as well as three other supporting Affidavits including a second and third by the Claimant
dated December 15, 2015 and March 23, 2016. The Defendant’s main witness was
Customs Officer, Richard Smith who swore an Affidavit dated December 11, 2015. There
were two other supporting Affidavits for the Defendant.
11. The facts relied on by the Claimant are summarised in his written closing submissions as
follows:
1) The Claimant, Ravendra Kemat Bridglal , by way of a fixed date claim form filed on
November 16th 2015, claims relief and/or redress pursuant to Section 14 of the
Constitution against the Attorney General of Trinidad and Tobago. The relief claimed
is in respect of the seizure and detention of Seventy-Four Thousand United States
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Dollars ((US$74,000.00) which was seized from the Claimant at the Piarco
International Airport on January 28th, 2014 by Customs and Excise Officer III, Richard
Smith (the investigator) and subsequently detained pursuant to an order made by a
Magistrate under Section 38 (2) of the Proceeds of Crime Act, Chap. 11:27 (POCA).
2) Several renewals of the detention order were granted pursuant to Section 38 (3) of
POCA between January, 2014 and July, 2015. However, on an application by the
investigator indicating that the detention of the cash was no longer necessary, Her
Worship Magistrate Debby Ann Bassaw ordered the Claimant’s cash released on July
23rd, 2015.
3) At the time of the filing of this claim on the 16th day of November, 2015, the
Magistrate’s order had not been complied with, despite evidence that the State was
aware of the Order as early as July 30th, 2015 and had given an indication that the
Investigator would take the necessary steps to “apply for a formal release of the said
cash together with interest accrued from the Comptroller of Accounts…”1 This
correspondence was sent in response to the Claimant’s pre-action letter of June 1st,
20152.
4) On the 9th day of November, 2015, over three (3) months after the Magistrate’s order
was made, a further letter3 seeking the urgent return of the Claimant’s cash was sent to
the Defendant but remained unanswered. This claim was brought a week after.
5) To date, this Order was only partially complied with, as only the principal sum of
Seventy-Four Thousand United States Dollars (US$74,000.00) was returned to the
Claimant on the 23rd day of December, 20154, subsequent to the filing of this claim and
an application for interim relief filed on 26th day of November, 2015. The interest due
to the Claimant is yet to be paid.
6) On the 26th day of January, 2016 the Court refused the Claimant’s application for
interim relief on the basis that the Court did not have the power to make a mandatory
order against the State in light of Section 14 (3) of the Constitution and the Section
1 See exhibit “RKB4” annexed to the Claimant’s affidavit filed on 16th November 2015 2 See exhibit “RKB23” 3 See exhibit “RKB5” annexed to the Claimant’s affidavit in reply filed on 15th December 2015. 4 See Affidavit of Shanna Lutchmansingh filed on 8th March 2016
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22 of the State Liability and Proceedings Act. Directions were given on the said date
for, inter alia, the filing of written submissions on the substantive issues raised in the
constitutional claim.
12. As it relates to the factual matrix there was some relevant additional information not
provided in the Claimant’s Affidavit in support of the Claim. Specifically, at paragraph 6
of the affidavit of Richard Smith, it was stated that before the initial detention order was
granted by the Magistrate the Claimant was issued a Notice of Seizure of the cash which
clearly stated the grounds on which the Claimant’s cash was being seized. Further at
paragraph 11 of the Defendant’s Affidavit (later also included at paragraph 11 of an
affidavit in response by the Claimant) Richard Smith testified that the Claimant had in July,
2014, availed himself of the option to apply to the Magistrate for release of the cash.
13. This additional information once provided in the Defendants Affidavits was not disputed.
In addition to these affidavits the parties filed written submissions by exchange in
accordance with the Case Management directions of the Court. The parties filed
submissions in Reply however, only the Defendant did so within the time directed by the
Court.
Submissions, Law and Analysis:
i. Ex-parte order:
14. The Claimant in written submissions argues that S.38(4A) which directs an applicant to
make an ex-parte application for the continued detention of goods seized, is a draconian
provision and that the circumstances of the instant case were such that the application for
a detention order should not have been made ex-parte. Citing Ridge v Baldwin5, the
Claimant submits that his natural justice right to be heard was breached by the ex-parte
nature of the application. However, the Defendant in reply has argued that this was not a
pleaded point and the Claimant is therefore barred from submitting on this issue at this
stage.
15. Further the Defendant submits there is no basis for this challenge since S. 38(4A) was
lawfully passed by Parliament with the requisite majority for a provision inconsistent with
5 (1964) AC 40, 113-114
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Sections 4 and 5 of the Constitution, Chap. 1:01. Sections 4 and 13 of the Constitution
provide as follows:
4. It is hereby recognised and declared that in Trinidad and Tobago there have
existed and shall continue to exist, without discrimination by reason of race, origin,
colour, religion or sex, the following fundamental human rights and freedoms,
namely:
(a) The right of the individual to life, liberty, security of the person and
enjoyment of property and the right not to be deprived thereof except by due process
of law;
(b) The right of the individual to equality before the law and the protection
of the law
13. (1) An Act to which this section applies may expressly declare that it shall have
effect even though inconsistent with Sections 4 and 5 and, if any such Act does so
declare, it shall have effect accordingly unless the Act is shown not to be reasonably
justifiable in a society that has a proper respect for the rights and freedoms of the
individual.
(2) An Act to which this section applies is one the Bill for which has been passed
by both Houses of Parliament and at the
final vote thereon in each House has been supported by the votes of not less than
three-fifths of all the members of that House. (3) For the purposes of subsection (2)
the number of members of the Senate shall, notwithstanding the appointment of
temporary members in accordance with section 44, be deemed to be the number of
members specified in section 40(1).
16. In addition to the provision on ex-parte hearing having been passed with the required
majority, it is clear that the right to be heard, particularly at a preliminary stage of
investigations may be expressly and lawfully excluded by statute. According to the Stair
Memorial Encyclopaedia on natural justice6:
“Statutory procedures, whether in a regulatory or disciplinary context, frequently
provide for a preliminary inquiry into an individual's conduct or affairs before it is
6 Administrative Law (Reissue) (31 December 1999) at [69]
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decided whether the matter should be taken into a further stage at which charges
are notified to the individual and a full hearing held in which he may take part.”
17. On this point, therefore, the Claimant has failed to prove that the ex-parte nature of the
application for detention orders provided for in POCA has violated his rights to natural
justice.
ii. Prescribed Forms:
18. The POCA gives certain Police and Customs Officers the power to seize and detain a
citizen’s cash. If the funds are to be detained for more than 96 hours the Order of a
Magistrate is required. Prior to 2014, there was no standard procedure for obtaining the
detention of cash order provided for in the POCA. Thereafter, the Miscellaneous
Provisions Act, No. 15 of 2014 was enacted, introducing the words “in the prescribed
form” into Section38(4) POCA, as follows:
“(4) Any application for an order under subsection (2) or (3) shall be made in the
prescribed form before a Magistrate by the Customs and Excise Officer…”
19. The Proceeds of Crime (Prescribed Forms) Regulations, 2015 were made on January 8,
2015 prescribing by Legal Notice No. 2 of 2015 under Section 38(2) and (3) for an ex-
parte order to authorize the detention of cash seized and for any subsequent applications
for detention orders where extension beyond three months was required.
20. Further on January 27, 2015 Section 7 of the Finance Act, No. 2 of 2015 amended the
POCA by introducing at Section 38(4C) the requirement of a prescribed form for the
Magistrate’s cash detention order as well as at Section 38(7A) the requirement of a
prescribed form for the application for the release of cash.
21. Regulations were not made to prescribe a form pursuant to Section38 (4C) to enable a
Magistrate to make an ex parte order in a prescribed form as intended by Parliament until
September 3, 2015. This was after the Claimant’s cash had already been ordered detained
and subsequently ordered released by a Magistrate. There was therefore no prescribed
form at the time of the making of the initial ex-parte order and subsequent extension orders
authorizing detention of the Claimant’s cash.
22. The Claimant’s case is based primarily upon the fact that as from January 27, 2015,
approximately one year after the initial detention of his cash, there was provision for an
order to be made in the prescribed form; but there were no prescribed forms in the
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Regulations. This, according to the Claimant, had the effect of depriving the Magistrate of
her jurisdiction to make such orders until such time as the forms were prescribed.
23. The Claimant cites the case of Peters and Chaitan v AG7 which involved a constitutional
challenge by the Claimants to certain representation petitions under the Representation of
the People Act [“RPA”] which sought to invalidate the Claimants’ election to Parliament
in the year 2000. The challenge was based inter alia on the failure of the Rules Committee
to make rules of Court prescribing the several matters relating to the bringing of a
representation petition that had been left by the RPA to be 'prescribed'. Among the things
so left to be prescribed was the form of the representation petition.
24. The Defendant herein also placed reliance on this case and underscored in submissions that
the Court of Appeal in Chaitan held that there had been no breach of the Claimant’s right
to protection of the law in the fact that the High Court had entertained the petitions despite
there being no prescribed rules. This was so firstly because it considered that the High
Court was vested with inherent jurisdiction to regulate the procedure for entertaining and
determining representation petitions.
25. De la Bastide CJ, as he then was, rejected the argument advanced for the appellants “that
the effect of making this provision ‘subject to this part and…the rules made thereunder’ is
to render it inoperative unless and until rules are made.” He explained that the
fundamental question was whether it was parliament’s intention in enacting the RPA that
the filling in of procedural gaps by prescribing rules of court should be a condition
precedent to the exercise of the Court’s jurisdiction or whether these gaps could be “filled
by resort to the inherent jurisdiction of the court, or in some other way.”8 [Emphasis
added]
26. Further guidance relevant to any Court conferred by statute with a power in relation to
which procedural gaps remained to be filled by a relevant authority was provided in the
statement of de la Bastide CJ at page 278 of the Judgment. He explained:
“The failure of the relevant authority to fill in by rules or regulations, the interstices
of a statutory provision which grants to a court a new jurisdiction or power, does
7 (2001) 63 WIR 244 8 Pg 274
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not necessarily make it impermissible for the court to exercise that jurisdiction or
power. That will be the result only if:
(a) The rules or regulations are needed in order to complete the definition
of the power or jurisdiction in question and/or
(b) An intention can be discerned from what Parliament has enacted that
the making of the rules or regulations should be a condition precedent to
the exercise of the power.”
27. Following this guidance from Chaitan it is clear therefore that the Claimant herein, in order
to establish that the exercise of the Magistrates authority without the prescribed form was
unconstitutional, must prove either that the forms are necessary to complete the definition
of the Magistrate’s power to make detention orders or that Parliament’s intention was that
the prescription of forms be a condition precedent to the making of such an order. In
Chaitan it was held that the failure of the Rules Committee to make rules governing
representation petitions did not deprive the High Court of its jurisdiction. This was so
because it was clear that Parliament did not intend that the said failure should prevent the
court from exercising its jurisdiction to determine election disputes. The said failure
having occurred did not have that effect.
28. Unlike the case in Chaitan, the present case concerns the jurisdiction of a Magistrate.
Accordingly the Claimant has underscored in submissions that the Magistrate’s jurisdiction
is limited to the powers given to Magistrates under the Summary Courts Act, Chap. 4:20
(“SCA”) or other legislation and a Magistrate does not have authority to exercise an
inherent jurisdiction9.
29. Under the SCA the Magistrate is empowered to make orders “in the exercise of its
jurisdiction”. The Claimant therefore argues that the Magistrate had no jurisdiction to act
in the absence of the prescribed form, or alternatively, that the Magistrate exceeded its
jurisdiction by using a form other than that which is prescribed.
30. The Defendant in addressing this contention cited Port Contractors Ltd v Shipping
Association of Trinidad and Tobago10 which was applied in Chaitan. The Court in Port
9 DPP v Her Worship Marcia Murray and First Citizens Bank App. No. P019 of 2013 10 (1972) 221 WIR 505
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Contractors was considering whether the exercise of jurisdiction to join parties to a trade
dispute, which in that case was a power of the Industrial Court, is subject to the making of
rules and regulations. On the facts of that case it was held that:
“[Section 11(5)(c) Industrial Stabilisation Act 1965] does not in terms make the
exercise of the power of joinder subject to the making of rules. The whole scheme
of the Act indicates that the court was to have ample freedom in the regulation of
its procedure. Section 11 (4) provides:
'The Court may, subject to the Act, regulate its practice and its procedure for the
hearing and determination of a trade dispute.'
It could hardly have been intended that a court given such wide power to regulate
its procedure without a code of rules should be restrained from exercising a power
of joinder unless it produced a code dealing with the terms and conditions under
which joinder would be ordered. It must be borne in mind that any rules
prescribed would not limit the scope of the power. This must depend on the Act
itself. They would merely regulate the procedure for the exercise of the power.
Further, it is clear that although the power is given to the court, the intention is
that it should be exercised for the benefit of parties appearing before the court.
Final decisions in disputed matters can be more speedily reached if all parties
concerned can be compelled to attend, put their cases forward and submit to the
judgment delivered. To hold that the power cannot be exercised in the absence of a
prescribed code of rules would mean that parties to disputes would be deprived of
the benefit of the exercise of the power because of the court's failure to produce a
code–a circumstance over which they could have no control. I do not think that this
could have been intended…
I am satisfied also that the preparation of such a code was not a condition
precedent to the exercise of the power of joinder. The provision is directory–not
mandatory. The failure to prepare rules does not stultify the power conferred upon
the court to exercise the power of joinder. Accordingly, I am of opinion that the
court did have the power to entertain and rule upon the applications for joinder
made in this case.” [Emphasis added.]
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31. Following the reasoning from Port Contractors and Chaitan the Defendant submits that
the test as to whether the failure to prescribe rules, or in this case forms, stultifies the power
conferred on the Magistrate is in two parts: (a) whether the prescribing of the forms is a
condition precedent to the exercise of magisterial power or (b) whether the forms
prescribed would limit the scope of the power of the Magistrate. Applying this test the
Defendant submits that despite the fact that no prescribed forms were used or available for
use as provided for in the amendment to the POCA, the Magistrates detention orders were
not unconstitutional.
32. In further support of the claim that failure to use prescribed forms was fatal to the
constitutionality of the Magistrate’s orders, the Claimant cites the case of Sharma v
Registrar of the Integrity Commission and Another11. This case involved judicial review
of the Integrity Commission’s delay in prescribing regulations for the filing of declarations
for persons in public life. The Appellants therein also challenged the decision of the
Commission not to require persons to file declarations in the absence of regulations. The
Privy Council affirmed the decision of the Court of Appeal in that case that the Commission
was correct in informing the persons in public life that they were not required to file a
declaration for that year as it was simply giving effect to the Act.
33. Applying this to the present case, the Claimant contends that the absence of the detention
order forms that the POCA amendment, provided for months after his cash was initially
detained, in fact precluded the Magistrate from making any further orders for continued
detention of his cash.
34. However, the Defendant submitted in reply submissions that the circumstances of the
Sharma determination were distinguishable from the case at hand. In Sharma, the Privy
Council determined that the forms were a condition precedent to the filing of the
declaration due to the high degree of uniformity required so that the information that the
Commission received could be examined efficiently and in the absence of such a system
the declarations would be chaotic. In the present case however, the forms could not have
been a condition precedent since all the conditions for detention of the cash were provided
for at Section 38(2) of the POCA. It was based on this that Magistrates had been able to
issue detention orders prior to the introduction of the provision for a prescribed form to be
11 [2007] UKPC 42
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used. The issue of inefficiency such that the Magistrates power to make detention orders
could not properly have been carried out without the forms did not therefore arise.
35. The Defendant argues that the case of Sharma is inapplicable based on the distinguishing
factors. Accordingly, the Claimant in the present case must still satisfy the test outlined in
Chaitan by proving either that the forms are a condition precedent to the exercise of
magisterial power or that the forms prescribed would limit the scope of the power of the
Magistrate to issue detention orders.
36. According to the Claimant, Parliament’s intention was to avoid uncertainty by removing
the Magistrate’s autonomy to create her own orders. The Claimant argues that the use of
the word “shall” in the amendments to the Act suggest that the prescribed forms are
mandatory for the making of an order. The Claimant suggests that due to the ex parte nature
of the application for detention, the prescribed forms would act as a safeguard to ensure
certain technical requirements were met.
37. However, the Defendant disputes that this was Parliament’s intention, citing the Hansards’
Reports12 the Defendant underscored that the amendments which provided for prescribed
forms came into force “to strengthen the country’s anti-money laundering and combat the
financing of terrorism regime”. It could not therefore have been intended that by
introducing this provision for forms and simultaneously not prescribing any forms the
Magistrates power to issue detention orders would by instantly removed. Furthermore the
prescribing of the forms could not present a limitation of scope of the Magistrates powers
since the grounds for the issue of a detention order and the continuation thereof were
already contained in S.38(2) POCA. These are the substantive conditions to be fulfilled
prior to making such an order and there is no provision that the use of a prescribed form is
a condition precedent to the Magistrates detention order authority. The Defendant
maintains that the provision for use of the prescribed forms in no way limits the scope of
the Magistrate’s power to issue a detention order but merely provides a format for doing
so.
38. Further support for the Defendant’s position is provided by the decision of the Court of
Appeal in Jamaat al Muslimeen v Bernard13. At page 435 of the Judgment Sharma JA,
12 Hansards’ Reports dated 19 September 2015 13 (1994) 46 WIR 429
Page 17 of 25
as he then was, confirmed a submission of Counsel for the Appellant, Mr. R.L. Maharaj as
he then was, that:
“Where an Act conferred jurisdiction on a court, and no rules have been made, the
court will not allow that failure to stultify the Act, and jurisdiction would be
exercised.”
Based on supporting authority for this statement Mr. Maharaj had contended that “When
jurisdiction exists in a case in which apt procedure is not provided by statute the judge
must himself mould a convenient form of procedure.”
39. Having considered the submissions on both sides it is my finding that the Claimant has
not succeeded in proving either that Parliament’s intent was that the prescribing of forms
would be a condition precedent to the Magistrate’s making of a detention order or that the
provision for forms limited the scope of the Magistrate’s power.
iii. Failure to prescribe a form for the Claimant’s application to release the
detained cash.
40. As aforementioned the Claimant submitted that he was deprived of his right to protection
of law because there were no prescribed forms for him to apply to have his cash released.
41. This contention falls flat however in the face of the evidence presented by the Defendant
that the Claimant in fact made several oral applications and one written application for
release of the funds, albeit this was before the law was changed to require a prescribed
form. The Defendant in closing submissions underscored that the Claimant’s right to apply
for release of his cash was never taken away from him. It is my finding that the absence
of prescribed forms after the law was changed did not prevent the Claimant from making
further applications for release of the cash as he saw fit. These could have succeeded if at
any time the Magistrate found that there were no sufficient grounds for continued detention
due to ongoing investigations. In fact the Application which eventually resulted in the
release of his cash was made by Customs Officer Richard Smith without the use of a
prescribed form.
iv. Mandatory nature of the provisions regarding forms.
42. As aforementioned one of the contentions of the Claimant is that the effect of the statute
as to whether it was mandatory or discretionary that forms be prescribed must be
considered. This requirement was emphasised in the Court of Appeal decision of Annissa
Page 18 of 25
Webster v AG.14 The use of the word “shall” in the provisions of the amendment to POCA
that introduced the requirement for prescribed forms appears on a literal interpretation to
make it mandatory that forms be used. However, by the time this provision was made law
the Magistrate herein had already issued her order detaining the Claimant’s cash. All that
remained was for the order to be extended every three months until investigations were
complete.
43. The new amendment required after the fact, that prescribed forms be used where none
were previously needed for the grant of extension orders; but there were none in existence.
This gave rise to an ambiguity that differentiates the instant circumstances from those
where in other cases such as Sharma the prescription of regulations was held to be
mandatory based inter alia on the word “shall”. A purposive interpretation taking into
consideration whether the grant of detention orders without prescribed forms could in
actuality prejudice the Claimant’s rights is therefore required.
44. The Claimant relies on the authority of Alleyne and ors v AG15, a case in which the Privy
Council determined that the failure to make regulations under the Municipal Corporations
Act and the Statutory Authorities Act violated the applicant’s “right to such procedural
provisions guaranteed to them by Section 5(2)(h) of the Constitution for the purpose of
giving effect to their rights and freedoms under Section 4(b) of the Constitution”.
45. The Defendant, citing Ronald Daniel v AG16, submits that since Section 4(a) of the
Constitution provides that a person should not be deprived of his right to property save by
due process of law, the onus is on the Claimant to show how he was deprived of his
property without due process. The Defendant emphasises that the finding from the Ronald
Daniel case is that the due process right guarantees a justice system that is fair but not one
that is infallible17. Further, once due process is fulfilled, the individual has protection of
the law under S. 4(b)18.
14 CA No. 86 of 2008 15 [2015] UKPC 3 16 CV2009-00398 17 Maharaj v AG (No.2) [1979] AC 385; Thomas v Baptiste (1998) 54 WIR 387; Boodram v AG [1996] AC 842 18 Lewis v AG of Jamaica PCA No. 60 of 1999
Page 19 of 25
46. The Court of Appeal in Matthews v The State19 further clarified the position as to how a
determination should be made whether legislation providing for certain things to be done
is mandatory of directory. The Court held:
“It is no longer accepted that it is possible, merely by looking at the language of a
legislative provision, to distinguish between mandatory provisions, the penalty for
breach of which is nullification, and directory provisions, for breach of which the
legislation is deemed to have intended a less drastic consequence. Most directions
given by the legislature in statutes are in a mandatory form, but in order to
determine what is the result of a failure to comply with something prescribed by a
statute, it is necessary to look beyond the language and consider such matters as
the consequences of the breach and the implications of nullification in the
circumstances of the particular case.”
47. In the instant case, the absence of prescribed forms appears to have had little prejudicial
effect on the Claimant. The only potentially material prejudice the Claimant, from his
evidence on oath, claims to have been faced with was the lack of grounds outlined in the
first detention order. This however, is countered by the Defendant’s position that the
Claimant attended for every hearing thereafter wherein the Magistrates had to decide on
extensions and was represented by counsel. He therefore had an opportunity to make any
objections or to request that grounds be provided.
48. The Claimant could also at any time during the period when detention orders were being
made and extended have filed for judicial Review of the Magistrates decisions. Such
recourse could have been either on the basis that no grounds were expressed for the
decisions as alleged or that the grounds made known to the Claimant did not justify her
decision. In so doing the Claimant could have had recourse to Section 16 of the Judicial
Review Act, Chap 7:08 to have the reasons of the Magistrates reviewed.
49. In any event, even before the initial ex-parte order the Claimant was issued a Notice of
Seizure of the cash which stated the grounds of detention. Additionally, the Claimant made
oral requests for release of the cash at every hearing and also submitted a written
application in July, 2014 even before the law was changed to provide for a prescribed form.
His applications were denied pending the ongoing investigations.
19 (2000) 60 WIR 390
Page 20 of 25
50. In all the circumstances it is my finding that despite the use of the word “shall” in the
amendment providing for use of prescribed forms, a purposive interpretation allowing for
the Magistrate to issue extensions of pre-existing detention orders was required to make
the legislation workable in the absence of any prescribed forms. Such an interpretation is
justified as while allowing for the intention of parliament in facilitating POCA
investigations to be fulfilled it did not prejudice the rights of the Claimant
v. Failure to provide grounds:
51. The Claimant’s further contention as to the breach of his constitutional rights is that the
ex parte order of the Magistrate breached natural justice in that it did not contain the
grounds for the detention or reasons for making the order. Accordingly, even if there was
a prescribed form in existence and it was used in the Magistrates Orders, the Claimant
contends he could not have made an application for release showing that there were no
longer any grounds for the detention. He submits that due to this alleged breach of natural
justice the orders made by the Magistrates are therefore null and void. The Claimant cites
the case of Weekes v Montano and May20 as authority for the principle that courts should
ensure strict compliance with any enactment when an interference with a citizen’s
constitutional rights is involved.
52. However, the Defendant submits in response to this contention, that the Weekes case
involved a habeas corpus application and concerned the deprivation of a person’s liberty.
Therefore, the Defendant submitted that it is distinguishable from the present case where
it is the detention of the Claimant’s property at stake. The safeguard may therefore be less
strict in such a case. Further, they contend that the legislation being considered in the
Weekes case specifically provided for the grounds to be set out. Thus the decision in that
case cannot be applied to the instant circumstances where the POCA does not specify that
in issuing a detention order the grounds must be stated by the Magistrate. It is my finding
that this contention regarding unconstitutionality of the omission of grounds in the order
also fails.
vi. Delay:
20 (1970) 16 WIR 425
Page 21 of 25
53. The issue of delay in release of the cash and interest thereon is the strongest aspect of the
Claim for redress herein. This issue now stands alone based on my determination that the
other Constitutional Relief claims were without merit. The Claimant contends that the
failure to repay the sum plus interest after the order of the magistrate to release it amounts
to a further violation of the Claimant’s rights to protection of the law. The Claimant has
not cited any authority for this proposition however, the Defendant citing Ronald Daniel
v the AG21 underscored that in that case the Court questioned whether faults in
administration could amount to the breach of the right to protection of the law under
Section 4 of the Constitution. Pemberton J concluded at page 15 of the Judgment that
while administrative difficulties should be speedily addressed and proper administrative
steps put in place to ensure delays by the prison authorities in providing a form to a prisoner
for withdrawal of his appeal are the exception rather than the rule, the delay in that case
was insufficient to show breach of the prisoners constitutional rights.
54. The Defendant submits that constitutional relief would not be the appropriate remedy to be
granted to the Claimant for the delay in payment. There are alternative remedies available
to the Claimant such as an award of damages if a claim alleging detinue/conversion had
been filed by the Claimant.
55. In support of this contention the Defendants cite the decision in Ghani v Jones22. In that
case it was shown that police officers at common law had the power to detain goods for a
reasonable time once they suspected that such goods were material evidence of criminal
activity. An action in trespass can ensue for the return of goods wrongfully seized. Another
case, R v. City of Salford Magistrate’s Court23 cited by the Defendants supported their
contention that the Claimant had at all times from the initial seizure, the right to apply for
his detained cash. That right had never been taken away and as such there was no basis for
Constitutional redress. According to MacKay J,
“There are safeguards for the erstwhile holder of the seized property, and he has
the ability at any time, if he thinks he can show that its continued detention is
unwarranted, to seek its return.”
21 CV2009-00398 22 (1970) 1 QB 693 23 [2009] 1 WLR 1023
Page 22 of 25
56. According to the Defendants the inclusion at Section 38(7) (a) (i) of POCA of a provision
for the person whose cash has been seized to claim its release provides an “inbuilt
safeguard”, but this was always a remedy available at common law. It remained available
and the Claimant was not deprived of it when there was a failure to prescribe forms and/or
to include grounds in the detention orders. Such failure if any could also have been
addressed by the Defendant availing himself of procedures under the Judicial Review Act,
Chap to have the actions of the relevant authorities in delaying the release of his cash
reviewed.
57. The Claimant has failed to avail himself of the recourse to damages in trespass and/or to
challenge, by application for Judicial Review, the omission of the relevant authorities to
return his cash. This precludes him from any relief for the delay by way of this
Constitutional Motion.
Decision:
58. The detention orders of the Magistrates were not unconstitutional even though not in a
prescribed form. No prescribed forms existed when the POCA was amended to introduce
that requirement. It could not have been the intention of Parliament that legislation
intended to strengthen the anti-money-laundering efforts of the State would instead result
in all Magistrates being required to release forthwith cash that had been detained for
investigations.
59. Ideally, bearing in mind that POCA had been in force for some time, with Magistrates
acting on same in making detention orders, the amendments to provide for a prescribed
form ought not to have been brought into effect until the said forms could immediately
thereafter be prescribed by the Minister. Accordingly, the new provisions introduced in
January, 2015 were not without ambiguity. They spoke to the need to use forms which did
not exist, so a purposive interpretation was required to fulfil the intention of parliament.
60. There are examples of such a purposive approach in cases such as Chaitan and Port
Contractors cited by the Defendant. Those cases differed from this one in that the Court
was determining whether the Claimant’s rights to access the Court would be stultified by
the failure of the relevant authority to fill procedural gaps in the legislative framework.
However, although the Claimant’s right to access the Court without awaiting rules is not
an issue here, the purposive approach is still appropriate. This is so because no rights of
Page 23 of 25
the Claimant were or could have been adversely affected by not treating the Magistrate’s
detention order powers under POCA as having been terminated by the failure of the State
to prescribe forms.
61. Although the Magistrates orders did not say what specified offence was suspected it had
been made clear to the Claimant previously by way of the initial seizure notice that the
offence was breach of Section 154 of the Customs Act. The Magistrate’s first order had
to be understood in the context of what went before. There was no breach of Natural Justice
in the omission of the grounds of suspicion in her order as these were already known by
the Claimant.
62. In the failure to return the cash within a reasonable time of the release order and to pay any
interest thereon up to this time, there has clearly been a breach in spirit of provisions in the
POCA intended to balance some proportionate relief with unavoidable interference with
property rights during criminal investigations. Sections 38(5) and (7)(b) provide that the
Comptroller of Accounts must deposit the detained cash in an interest bearing account once
it is delivered to him and thereafter he may on application release the cash with interest.
63. The delays in releasing the cash and continued failure to pay the Claimant any interest
smack of beaurocratic bungling, which though perhaps commonplace, cannot be condoned
particularly where property rights are adversely affected. Subject to any facts to be
ventilated in evidence in continued or subsequent proceedings, the Claimant may be
entitled to compensatory damages in these circumstances. However, the instant claim is
not the appropriate procedure for such redress. The Claimant should have sought such
redress by way of a claim for damages in trespass/detinue based on the unlawfully extended
detention of his cash which may have amounted to a trespass to his property once the
Magistrate ordered it released.
64. In all the circumstances however, the Claimant has not proved that the failure of the
Minister to prescribe forms when the POCA was amended served to eliminate the
jurisdiction of the Magistrate to make detention orders until the forms were prescribed. The
Claimant did not sufficiently succeed in satisfying the requirements outlined in Chaitan to
prove that a Magistrate’s detention order powers then became subject to the prescribing of
the forms.
Page 24 of 25
65. The Claimant also failed to prove that the detention orders had a prejudicial effect on him.
This is clear from the evidence of his having received the seizure notice with grounds stated
therein, thereafter having attended with counsel at all but the first hearing of the
applications by the Magistrate and finally by having been able to make his own applications
for release of the sum.
66. The Claimant has therefore failed to prove that the exercise by the Magistrate of her power
under the POCA in issuing a detention order in the absence of prescribed forms was a
breach of the Claimant’s right to protection of the law.
67. The Claim as to breach of constitutional rights due to the delay in release of the cash to the
Claimant must also fail. It is not a claim that ought properly to be treated with by
Constitutional Motion as the alternate recourse of a claim in detinue/conversion or Judicial
Review was available to the Claimant. There is however provision in the Civil Procedure
Rules 1998(as amended) [“CPR”] for matters to be put right by rectifying the nature of
the proceedings and continuing to a determination of the issues of fact and law arising from
the delay in releasing the cash.24
68. Of particular relevance are CPR 55.14(3) read with 55.1(1) (b) and (2) as well as CPR
26.8(3) and (4). This approach also accords with the over-riding objective at CPR 1.1 to
enable the Court to deal with cases justly which would include the saving of expense that
could otherwise be incurred by the parties and the Court if the Claimant were required to
file a fresh claim in detinue. There is provision at CPR 26.1(w) enabling directions to be
given accordingly.
69. In all the circumstances the Constitutional Motion filed by the Claimant herein is not the
appropriate procedure. In light, however, of the fact that the non-release of the cash and
continued failure to pay the Claimant his interest were good grounds for seeking redress I
will not make an order of full costs against the Claimant for having inappropriately
approached the Court by Constitutional Motion. The Defendant is urged to take immediate
steps to minimize the need for continued costly litigation by ensuring that no administrative
inefficiency is allowed to deprive the Claimant of any interest due and payable on his cash.
24 Antonio Webster v. The Attorney General [2011] UKPC 22 at para 13 and 14.
Page 25 of 25
IT IS NOW ORDERED AS FOLLOWS:
a. That the Originating Motion filed on 16th November, 2015 be and is hereby
converted to a common law action for detinue.
b. That the Claimant pay to the Defendant two thirds of the costs of the Constitutional
Motion to be assessed, if not agreed.
c. That a Case Management date be fixed for further directions.
Dated June 7, 2016
………………………………………
Eleanor Joye Donaldson-Honeywell
Judge
Assisted by: Christie Borely,
Judicial Research Counsel