The Minister of Agriculture, Lands, Housing, Co-Operatives and Fisheries v Eustace Nisbett

• Jurisdiction: Saint Kitts and Nevis
• Judge: Thom JA
• Judgment Date: 02 March 2021
• Neutral Citation: KN 2021 CA 1
• Court: Court of Appeal (Saint Kitts and Nevis)
• Docket Number: SKBHCVAP2019/0020
• Date: 02 March 2021

THE EASTERN CARIBBEAN COURT OF APPEAL

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

SKBHCVAP2019/0020

Between:

[1] The Minister of Agriculture, Lands, Housing, Co-Operatives and Fisheries

[2] Nevis Housing and Land Development Corporation

Appellants

and

Eustace Nisbett

Respondent

Appearances:

Mr. Terrence V. Byron for the Appellants

Mr. Patrice Nisbett for the Respondent

Civil appeal — Judicial review — Whether learned judge erred in finding that the Minister terminated the disbursement granted to respondent by the Cabinet — Whether claim by respondent was properly instituted as a claim for judicial review rather than a claim in private law of an employee and employer dispute — Whether respondent was entitled to relief in public law on his claim — Whether rules of natural justice may be imported in a private contractual relationship

The respondent, Mr. Eustace Nisbett, was employed as the Manager of the second appellant, Nevis Housing and Land Development Corporation (“the Corporation”) by virtue of a contract of employment. In May 2012, Mr. Nisbett applied to the Corporation and was granted study leave to pursue studies in law in the United Kingdom (“UK”). In addition, the Corporation agreed to grant Mr. Nisbett financial assistance for his studies, and in return, Mr. Nisbett was required to, among other things, provide the Corporation with semester reports. The Cabinet of the Nevis Island Administration (“the Cabinet”) also agreed to meet a portion of the cost for his studies, granting to him 80% of his tuition and living expenses.

Mr. Nisbett proceeded to the UK to pursue his studies and a few months later, Mr. Alexis Jeffers was appointed the Minister of Agriculture, Lands, Housing, Co-operatives and Fisheries. On 11 ^th February 2013, the Minister wrote to Mr. Nisbett requesting him to provide a transcript of examination results for the semester ending December 2012. Mr. Nisbett responded informing the Minister that there were no such reports since the examinations were held annually and were not due until May-June 2013. By letter dated 13 ^th February 2013 (“termination letter”), written on the Ministry's letterhead, the Minister informed Mr. Nisbett that all disbursements to him had been terminated until he provided the information requested. The Minister later wrote to Mr. Nisbett informing him that the Corporation had decided to terminate his employment with immediate effect.

Subsequently, the respondent instituted judicial review proceedings in which he sought several remedies including: (i) declarations that: (a) the termination of financial assistance granted by the Cabinet was contrary to law, null, void and of no effect; (b) his dismissal was unlawful, null, void and of no effect; (ii) certiorari quashing the decision to terminate the financial assistance; (iii) mandamus requiring the Corporation to forthwith reinstate him or alternatively to pay him such sums as would be due to him under the contract of employment; and (iv) vindicatory damages. The learned judge having heard the evidence found in favour of Mr. Nisbett, finding that the Minister had no authority to terminate the disbursement to which the Cabinet had agreed, and that he had done so in breach of the rules of natural justice. The learned judge also found that Mr. Nisbett's dismissal was in breach of the principles of natural justice and the claim fell within the realm of public law. As such, the learned judge granted the reliefs sought and a declaration that Mr. Nisbett was entitled to any disbursement, salary and other remuneration lawfully due and owing to him pursuant to his contract and the decision of the Cabinet. The learned judge also awarded Mr. Nisbett damages and granted him liberty to make further submissions on the issue of vindicatory damages.

Dissatisfied with the decision of the learned judge, the appellants have appealed to this Court. The main issues that arise to be determined are whether the learned judge erred in finding that the Minister terminated the disbursement granted to Mr. Nisbett by the Cabinet, and whether Mr. Nisbett was entitled to relief in public law on his claim.

Held: allowing the appeal; setting aside the orders of the learned trial judge; and ordering no costs in the court below and no costs on the appeal, that

• 1. An appellate court will exercise great restraint before interfering with a finding of fact by a lower court. Where however, the court is satisfied that the finding of fact cannot be supported by the evidence, an appellate court will intervene.

  Elefterescu v Royal College of Veterinary Surgeons 2020 UKPC 6 considered.

• 2. There is no evidence to support the learned judge's finding that the decision to terminate the financial assistance was the decision of the Minister. The learned judge having found that there was no communication from the Cabinet Secretary, and no evidence that the Cabinet made the decision to terminate the financial assistance, erroneously concluded that the Minister made a decision to terminate the financial assistance granted by the Cabinet. The learned judge having proceeded on this wrong basis, gave no consideration to whether ‘all disbursements’ included the financial assistance approved by the Cabinet. When the termination letter is read in the context of the discourse between the Minister and Mr. Nisbett, it is very clear that the Minister was referring to disbursements from the Corporation and not any disbursements from the Cabinet. Accordingly, the learned judge erred in his conclusion.

• 3. The approach to be adopted in determining whether a public law remedy such as judicial review is the appropriate course, is that the court must look at whether there is a public law element in the decision and whether the allegation involves suggested breaches of duties or obligations owed as a matter of public law; only then will the decision be reviewable. As it relates to the ordinary contracts of employment, there is no ‘public law’ element present. Further, employment by a public authority does not per se inject an element of public law, nor does the fact that the employee holds a senior post. Where statute provides for employment by a public body to be on certain terms, it would give rise to public law rights and if there is failure to comply by the public body, then public law remedies could be sought. In relation to Mr. Nisbett, his position as Manager of the Corporation was not a position fortified by statute. Although the Corporation had statutory powers to employ, there are no statutory provisions or limitation on the positions or the terms and conditions on which persons are to be employed. It is therefore clear that Mr. Nisbett's claim is concerned with the infringement of his rights under contract law and that the learned judge erred in his findings.

  R v Panel on Take-overs & Mergers, Ex parte Datafin plc and another [1987] Q.B. 815 applied; R v East Berkshire Health Authority ex parte Walsh [1984] 3 All ER 425 considered; R v Derbyshire County Council (ex parte Noble) [1990] IRLR 332 considered; Swan v Attorney General [2009] UKPC 22 considered; N.H International Caribbean Limited v Urban Development Corporation of Trinidad and Tobago and Hafeez Karamath Limited 1 Civ. Appeal No. 95 of 2005 considered.

• 4. The rules of natural justice may be imported in a private contractual relationship, but it would go to the rights and duties of the contract. It would not import the necessary public element to bring the matter in the realm of public law. It follows that the terms in clause 7 of Mr. Nisbett's contract of employment may import the rules of natural justice and that a breach of the rules of natural justice may result in a termination being unlawful.

  R v East Berkshire Health Authority ex parte Walsh [1984] 3 All ER 425 applied; Gary Nelson v The Attorney General et al [ANUHCVAP2012/0001] (delivered 26th May 2014, unreported) considered; McLaughlin v The Governor of the Cayman Islands [2007] UKPC 50 considered.

Thom JA

1 The issue that arises in this appeal is whether the claim by the respondent, Mr. Nisbett, seeking various declarations, certiorari and damages, was properly instituted as a claim for judicial review, rather than a claim in private law concerning an employee and employer dispute.

2 The learned judge was of the view that the claim fell squarely in the realm of public law and that judicial review proceedings was the correct course. The appellants, The Minister of Agriculture, Lands, Housing, Cooperatives, and Fisheries (“the Minister”) and Nevis Housing and Land Development Corporation (“the Corporation”) disagree with the learned judge's decision.

Background

3 In 2006, Mr. Nisbett was employed as the Manager of the Corporation on contract for three years. At the expiration of the contract, he continued to serve as Manager and in March 2011 he entered another contract with the Corporation for a further three years.

4 In May 2012, Mr. Nisbett applied to the Corporation and was granted study leave to pursue studies in law in the United Kingdom (“the UK”). 1 The Corporation also agreed to grant Mr. Nisbett financial assistance for his studies in the sum of nine thousand, seven hundred and forty-one pounds (£9,741). 2 In return, Mr. Nisbett was required to provide the Corporation with semester reports and make himself available for work with the Corporation during vacation periods.

5 Mr. Nisbett also sought and was granted financial assistance from the Cabinet of the Nevis Island Administration (“the Cabinet”) to meet a portion of the cost for his studies. By letter from the Cabinet Secretary dated 3 ^rd August 2012, Mr. Nisbett was informed that the Cabinet had agreed to grant him eighty percent of his tuition and living expenses. 3 In...