CPL#61 Eldon Arzu v The Commissioner of Police
| Judge | Mr Justice Westmin R.A. James (Ag) |
| Judgment Date | 10 May 2021 |
| Docket Number | CLAIM NO. 106 OF 2019 |
| Court | Supreme Court (Belize) |
IN THE SUPREME COURT OF BELIZE, 2019 A.D.
Before the Honourable Mr Justice Westmin R.A. James (Ag)
CLAIM NO. 106 OF 2019
In the matter of an Application to apply for Judicial Review
and
In the matter of a Decision of the Commissioner of Police
Ms Nazira Myles and Ms Alberta Perez For the Applicant
Ms Agassi Finnegan and Ms Lavina Cuello for the Respondent
The Applicant applied for permission to file for Judicial Review by Application file on 11 th April, 2019. By order dated 6 th May 2019 Madam Justice Shona Griffith granted permission to the Applicant to file a Claim for Judicial Review in relation to his reassignment from the office of the Police Association, Belmopan to Planning and Performance Review and Inspection (PPRI) Unit. By Fixed Date Claim Form filed on the 23 rd May 2019, the Applicant sought the following orders:
i. An Order of certiorari quashing the Decision of the Defendant conveyed by way of letters to the Applicant dated 23 rd January, 2019 whereby the Defendant reposted the Applicant from Welfare Office to Planning Performance Review and Inspection with immediate effect.
ii. A declaration that the decision of the Defendant was made in breach of the principals of natural justice, procedural fairness and due process.
iii. A declaration that the decision of the Defendant was unreasonable and an abuse of power.
iv. A declaration that the decision of the Defendant was bias causing real prejudice to the Applicant.
v. A declaration that the Defendant acted ultra vires the Police Act
vi. A declaration that the Defendant breached and/or frustrated the legitimate expectation of the Applicant by reneging on the representations made to the Applicant to continue to be assigned full time to the Belize Police Association Office during his tenure.
vii. An Order that the Applicant be immediately and fully reassigned full time to the Police Association as Chairman prior to his purported unlawful reposting.
viii. Further or in the alternative damages.
The Applicant, Eldon Arzu, is a member of the Belize Police Department holding the rank of Corporal. He was also at the time a member of the Central Board and was elected as Chairman of the Belize Police Association (“ Association”).
Section 34 (1) of the Police Act, Chap. 138 (the “ Act”), authorized the establishment of the Association for the purpose of enabling members of the Police Department to consider and bring to the notice of the Commissioner and the Government all the matters affecting their welfare and efficiency, other than questions of discipline and promotion affecting individuals.
The Association acts through a Central Board which is elected annually and consists of seven members of whom no more than three shall be of identical rank in the Department at the time of election. Pursuant to rule 3(5)(a), the Chairman and Secretary of the Central Board are chosen from among its members and Rule 3(5)(b) empowers the Chairman to cast the deciding vote at a meeting of the Central Board at which he is present.
On 22 nd January 2012 the Applicant was selected as Chairman of the Association to replace the previous Chairman, Mr Hendrick Williams. Since 2012 and until 2019 the Applicant has been elected to the Central Board specifically as Chairman. At the time the Applicant worked at the Anti-Drug Unit.
By Statutory Instrument No. 1 of 2019, the Commissioner, with the approval of the Public Service Commission, amended the Rules which came into effect on 9 th January, 2019 introduced a new rule 3(5)(c) which provided that “(c) No member of the Police Department shall serve as Chairman for more than two terms.”
On 9 th January 2019 the Central Board re-elected the Applicant as a member of the Central Board and on 22 nd January 2019 appointed the Applicant as Chairman.
The next date, the Respondent by letter dated 23 rd January 2019, purported to repost the Applicant from the Welfare Office to the Planning Performance Review and inspection Unit (PPRI) with immediate effect. The letter went on to say that his salary and housing allowance will remain the same and authorized the Finance Officer to make the necessary adjustment and cost centre changes.
The Respondent sent a Memorandum dated 29 th January 2019 to the Association instructing them to convene a meeting and choose a Chairman and Secretary. The Memo from the Respondent specified that the Applicant could not be appointed as Chairman for another term.
On 31 st January 2019, the Applicant wrote back to the Respondent indicating after legal advice, the SI was not retroactive and the Applicant was lawfully appointed as Chairman and that decision was forwarded to the Respondent on 23 rd January, 2019.
By letter dated 1 st February, 2019, the Respondent wrote to the Applicant in his capacity as Chairman directing him to present assets of the Police Association for inspection by Monday 4 th February 2019 including vehicles, financial accounts, office equipment and all other moveable and immovable properties failing which disciplinary action would be taken against him.
By Memorandum dated 13 th February, 2019, the Respondent directed that another meeting be held and that another Chairman other than the Applicant be elected.
The Respondent refused to recognise the Applicant as the Chairman sending out a Memorandum indicated that no work by the Applicant as Chairman of the Association is to be honoured.
The Applicant contends that the transfer breached his legitimate expectation of a settled practice that as Chairman of the Association he would be assigned full time at the Association office. He cited Council of Civil Service Unions and others v Minister for the Civil Service [1984] 3 All E.R. 935 at page 943J to 944A, where Lord Fraser observed as follows:
“But even when a person claiming some benefit or privilege has no basic right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and if so, the courts will protect his expectation by judicial review as a matter of public law …. Legitimate, or reasonable expectation may arise from either an express promise given on behalf of the public authority or from the existence of a regular practice which the Applicant can reasonably expect to continue.”
In R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607 para 466 Schienmann LJ saw three questions arising in legitimate expectation cases: “The first question is to what has the public authority, whether by practice or by promise: committed itself: the second is whether the authority has acted or proposes to act unlawfully in relation to its commitment; the third is what the Court should do.”
In R v North and East Devon Health Authority, ex part Coughlan [2001] QB 213, the Court set out the three situations in which the doctrine of legitimate expectation can arise:
“i. Review on the basis of “wednesbury” unreasonableness. The court may find that a public authority should properly bear in mind its previous policy before deciding whether to change its course.
ii. Procedural legitimate expectation. The court may decide that the promise or practice induces a legitimate expectation of consultation before a decision is taken. iii. substantive legitimate expectation. The Court may consider that a lawful promise or practice has induced a legitimate expectation of a substantive benefit. The Court will decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power.”
In cases of substantive legitimate expectation, the following guidelines are applicable to establishing a substantive legitimate expectation:
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i. The lawfulness of the promise;
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ii. The requirement of fairness; and
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iii. The nonexistence of any overriding interests for the change of Policy.
In a case for the frustration of a legitimate expectation. The initial burden lies on an Applicant to prove the legitimacy of his expectation. In Francis Paponette and Ors v AG of T&T [2010] UKPC 32, 37 Lord Dyson sets out the burden of proof of an applicant in the case of a promise at paragraph 37:
“…the applicant must prove the promise and that it was clear and unambiguous and devoid of relevant qualification. If he wishes to reinforce his case by saying that he relied on the promise to his detriment, then obviously he must prove that too. Once these elements have been provided by the applicant, however, the onus shifts to the authority to identify any overriding interest on which it relies to justify the frustration of the legitimate expectation. It will then be a matter for the court to weigh the requirements of fairness against that interest.”
In a Ruling dated 7 th December, 2020 in this matter, this Court held that the SI No. 1 of 2019 operated prospectively and only applies to the terms of office as Chairman subsequent to the making of the statutory instrument. Therefore, the Applicant was lawfully entitled to hold the office of Chairman in 2019. Therefore, the question remains, did the Applicant as Chairman of the Association have a legitimate expectation to be assigned full time at the Association's Office.
The Ministry of National Security Memorandum dated the 3 rd February, 2013 to the Commissioner of Police spoke to this arrangement between the Chairman of the Association and the Police Department. It stated:
“The Ministry of National Security offers no objection for the newly elected President Cpl No. 61 Eldon Arzu to be assigned full time to the Belize Police Association for the duration of his tenure as...
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