Gairy vs. Attorney General of Grenada

JurisdictionUK Non-devolved
JudgeLord Bingham of Cornhill
Judgment Date19 June 2001
Neutral Citation[2001] UKPC 30
Date19 June 2001
Docket NumberAppeal No. 29 of 2000
Year2001
CourtPrivy Council
Jennifer Gairy (as administratrix of the estate of Eric Matthew Gairy, deceased)
Appellant
and
The Attorney General of Grenada
Respondent

[2001] UKPC 30

Present at the hearing:-

Lord Bingham of Cornhill

Lord Nicholls of Birkenhead

Lord Cooke of Thorndon

Lord Millett

Lord Scott of Foscote

Appeal No. 29 of 2000

Privy Council

[Delivered by Lord Bingham of Cornhill]

1

Grenada has an entrenched constitution under which its people are entitled to protection of certain fundamental rights and freedoms. Among them is a right to protection from deprivation of property by the state without compensation. The late Sir Eric Gairy established a violation of that right. It is convenient to refer to Sir Eric as the appellant although his administrators have succeeded to his claim and one of them, Jennifer Gairy, has been appointed by the High Court to continue these proceedings. At issue in this appeal is the power or duty of the courts to grant an effective remedy against the state for such a violation.

The facts

2

Grenada became a West Indies Associated State in 1967 and an independent nation within the Commonwealth in 1974. Its constitution was given effect by the Grenada Constitution Order 1973 under powers granted by the West Indies Act 1967.

3

On 13 March 1979 the legitimate government, in which the appellant served as Prime Minister, was overthrown by an armed coup, the constitution was suspended and power was seized by the People's Revolutionary Government. By what was described as People's Law No. 95 of 1979 dated 19 December 1979 the People's Revolutionary Government purported to enact a law to confiscate and vest in the government certain real properties belonging to the appellant listed in a schedule to the law. This law took effect. The People's Revolutionary Government was overthrown by a military coup on 19 October 1983. Following a military intervention, the constitution was brought back into force (subject to some exceptions immaterial for present purposes), and in December 1984 elections were held and parliamentary democracy restored.

4

In May 1985 the appellant issued proceedings claiming a declaration that the law confiscating his property was void and of no effect, but a commission of inquiry had just been established to receive and consider claims by persons who had been deprived of property by the state without compensation and the appellant discontinued his proceedings in order to present his claim to the commission. He duly presented his claim, and the commission in its report recommended the return of his property unlawfully confiscated and payment of compensation. He did not however obtain the return of his property or any payment. On 14 October 1987 he accordingly issued the present proceedings, 1987 Suit No 377, in the Supreme Court of Grenada. The proceedings were entitled:

"In the Matter of the Grenada Constitution Order (hereinafter the Constitution) sections 6 and 16

and

In the Matter of People's Law No. 95 of 1979 intituled Property Confiscation (Eric Matthew Gairy) Law 1979."

The respondent was the Attorney General of Grenada. The appellant sought a declaration that People's Law No 95 of 1979 contravened section 6 of the constitution and was null, void and of no effect, and consequential orders and directions. The grounds of the application repeated that the law contravened the provisions of section 6 of the constitution.

5

The appellant's motion came before St Paul J, before whom it was conceded on behalf of the Attorney-General that People's Law No 95 of 1979 contravened section 6 of the constitution. The court had "to consider what declaration or orders it may consider appropriate for the purpose of enforcing or securing the relief the applicant may be entitled to". Having considered sections 6 and 16 of the constitution, the judge ordered on 18 January 1990:

"1. All properties of the Applicant which were confiscated under the provision of People's Law No. 95 of 1979, which by consent of the parties the Court declares to be null and void, be forthwith returned to the Applicant.

2. The Applicant be compensated for the unlawful confiscation of the said properties. Such compensation to be determined by an arbitrator to be agreed on by the Applicant and the Respondent, in default of agreement by a referee appointed by the Court."

There was no appeal against that order. The appellant's properties were returned to him (save for some parts lawfully acquired by the state) and give rise to no continuing issue. An arbitrator was duly appointed and made an assessment of the compensation due to the appellant. On 29 April 1994 the parties returned to court. The Attorney General was represented by the Solicitor General and it was ordered by Moore J by consent:

"1. That the report of … the arbitrator appointed pursuant to the order of the Court dated the 31st day of July 1993 be adopted.

2. That judgment be entered for the Plaintiff in the sum of $3,649,414.00 being the amount awarded the Plaintiff by the arbitrator.

3. That interest on the said amount be paid at the rate of $6.00 per centum per annum from the 1st day of November 1990 until payment …

5. That the Minister of Finance be directed to issue a warrant under his hand forthwith for the prompt payment of the above amounts from the consolidated fund …"

6

Somewhat surprisingly, the Attorney General appealed against this consent order, one of his grounds (supported by the Solicitor General on oath) being that paragraph 5 of the order was contrary to law because the Minister of Finance could not be directed to issue a warrant for the prompt payment of the specified sum from the consolidated fund as directed by that paragraph. In the Court of Appeal (Sir Vincent Floissac CJ, Byron and Singh JJA) this issue was not fully argued since counsel for the present appellant conceded, for reasons which are not wholly clear, that the mandatory order against the Minister of Finance should not have been made. In a judgment delivered by Byron JA on 6 July 1994 (in which the other members of the court concurred) no ruling was given on this question. The parties agreed that suitable wording of paragraph 5 of the order would be:

"That there be prompt payment of the above amounts."

The order was amended accordingly, and so continued to be expressed in mandatory terms.

7

Some payments were made in pursuance of the order but a large sum remained outstanding. So, on 23 January 1997, the appellant issued a further notice of motion, still in the same proceedings. It is this which gives rise, immediately, to this appeal. Reference was made in the notice to the order of 29 April 1994 as varied by the Court of Appeal on 6 July 1994 and, having obtained leave to do so, the appellant sought an order of mandamus directed to the Minister of Finance requiring him to make prompt payment of the balance of the compensation ordered by paragraphs 2, 3 and 5 of the order as varied. A series of hearings, over a period of time, took place before Alleyne J. During that period a sum of EC$1 million was borrowed, and payment made on 5 February 1998. That left a balance of over EC$2,400,000 owing. In an affidavit sworn in opposition to the motion on 23 April 1998 the Prime Minister and Minister of Finance deposed that the revenues of the Government of Grenada did not permit payment of a lump sum to satisfy the residue of the debt. It appears that no payment has been made since February 1998.

8

On 25 February 1999 Alleyne J gave judgment dismissing the appellant's application. He had no difficulty in finding that the balance due on the judgment debt was a charge on and payable out of the Consolidated Fund. But he concluded that a mandatory order against the minister, enforceable by contempt or other coercive proceedings, would be an order against the crown, and in reliance on Jaundoo v Attorney-General of Guyana [1971] AC 972 he held that the court had no jurisdiction to make such an order.

9

The appellant challenged this ruling in the Court of Appeal (Byron CJ, Redhead JA and Matthew JA (acting)). On 22 November 1999, for reasons given in the closely reasoned judgment of Byron CJ, the appeal was dismissed. Having considered the relevant authorities, including Jaundoo's case and M v Home Office [1994] 1 AC 377, the Chief Justice concluded that an order of mandamus could be made to compel performance by a minister of a statutory duty binding on him in his official capacity. But he did not regard the appellant's claim as one covered by the Land Acquisition Act (Cap 153 of the Revised Laws of Grenada 1990) as amended by the Land Acquisition (Amendment) Act 1991, and concluded that section 21 of the Crown Proceedings Act (Cap 74 of the Revised Laws of Grenada 1990) provided an exclusive procedure for enforcing money orders against the crown. Under this procedure the appellant's remedy, enforceable by mandamus, lay against the Permanent Secretary (Finance) and not the Minister of Finance. The appeal was dismissed because the minister was not the public official obligated to make payment of the money which the court had ordered the state to pay the appellant. Dismissal of the appeal would also have been justified, it was held, on the ground of res judicata: the liability of the minister had already been the subject of a consent order of the Court of Appeal on 6 July 1994 and the issue could not be raised again. The appellant's constitutional claim was not considered in depth but the Chief Justice observed:

"The provisions of section[s] 16 and 101 of the Constitution of Grenada confer unlimited jurisdiction on the court to fashion remedies to secure the enforcement of the fundamental rights and freedoms provisions of the Constitution and grant protection against the contravention of the other provisions in accordance with the law … the courts are empowered by the...

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