Hugh Wildman Appellant v The Judicial and Legal Services Commission of the Eastern Caribbean States Respondent [ECSC]

• Jurisdiction: Grenada
• Judge: GORDON, J.A.,RAWLINS, J.A.,Michael Gordon, QC,Justice of Appeal,Hugh A. Rawlins,Justice of Appeal [Ag.]
• Judgment Date: 01 March 2007
• Judgment citation (vLex): [2007] ECSC J0301-1
• Court: Court of Appeal (Grenada)
• Docket Number: CIVIL APPEAL NO.9 OF 2006
• Date: 01 March 2007

[2007] ECSC J0301-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Michael Gordon, QC Justice of Appeal

The Hon. Mr. Hugh A. Rawlins Justice of Appeal

The Hon Albert Mathew Justice of Appeal [Ag.]

CIVIL APPEAL NO.9 OF 2006

Between:

Hugh Wildman

Appellant

and

The Judicial And Legal Services Commission of the Eastern Caribbean States

Respondent

Appearances:

Mr. James Guthrie QC with Mr. Ramesh Maharaj SC and Mr. Adebe Olowu for the Appellant

Mr. Sydney Bennett QC with Mr. James Bristol for the Respondent

GORDON, J.A.

1 By letter dated December 23, 2004 the Government of Grenada forwarded to the Judicial and Legal Service Commission, (hereafter referred to variously as the respondent, the Commission or the JLSC) a recommendation that the appellant be appointed to the public office of Attorney General of Grenada. Under the Constitution of Grenada (hereafter "the Constitution"), as with all of the other independent states within the jurisdiction of this court, an Attorney General can be either a public officer or a political appointee. Section 70 of the Constitution reads in part as follows:

"70. (1) There shall be an Attorney-General who shall be the principal legal adviser to the Government of Grenada.

(2) The office of Attorney-General shall be either a public office or the office of a Minister.

2 The Constitution also stipulates at section 88 that the power to appoint a public office Attorney-General rests with the Governor General acting on the advice of the JLSC (this latter provision is not common to all of the other constitutions in the independent states within the jurisdiction).

3 Knowledge of this recommendation came to the attention of the Grenada Bar (nothing turns on how) which took a position of strong opposition to such an appointment of the appellant. The JLSC was written to by the Grenada Bar Association by letter dated February 1, 2005 expressing its strong opposition. Accompanying that letter was a dossier entitled "Grounds for opposing Mr. Hugh Wildman's appointment as Attorney General of Grenada." That dossier will hereafter be referred to as Volume 1. A second letter dated February 3, 2005 was dispatched from the Grenada Bar Association to the respondent setting out further grounds of opposition.

4 By letter dated February 23, 2005 the appellant was invited to a meeting of the JLSC to be held at the Grand Beach Resort, Grand Anse, Grenada, on February 28, 2005. The letter informed the appellant that the Grenada Bar Association would be present to explain its opposition to the appellant's appointment and advised the appellant that he might be accompanied by a person of his choice. Accompanying the letter was a copy of Volume 1.

5 The meeting scheduled for February 28, 2006 at the Grand Beach Resort was duly held. At that meeting a second bound volume of documents was presented by the Grenada Bar. The JLSC concluded that it could not recommend the appointment of the appellant as Attorney General of Grenada to the Governor General of Grenada. Further facts will be alluded to at appropriate times in this judgment.

6 The appellant applied for judicial review of the decision of the JLSC. The matter was heard in November 2005 and a decision given on April 5, 2006.

7 The Judicial and Legal Service Commission was established by section 18 of the West Indies Associated State Supreme Court Order, 1967. The JLSC is governed by regulations cited as the Judicial and Legal Services Commission Regulations, Cap 336 of the laws of Grenada. Regulation 8 of the regulations reads in part as follows:

"For the purpose of exercising its functions in relation to appointments, whether substantive or acting, to any office, the Commission shall… consider the claims of all public officers eligible for appointment or promotion, may interview candidates for such appointments, and shall in respect of each candidate consider, amongst others, the following matters—

• (a) his qualifications;

• (b) his general fitness;

• (c) any previous employment of the candidate in the public service or in private practice…"

8 The argument on behalf of the appellant fell into two discrete parts. Part one related to the apparent bias of the trial judge and part two dealt with the proceedings of the JLSC as it deliberated on the request of the government of Grenada. In this judgment I shall reverse the order in which the two issues were dealt with.

9 There were three complaints concerning the proceedings of the JLSC. They were: insufficient investigation; the refusal to give reasons; and, finally, the refusal to reconsider or inadequate reconsideration of the decision.

10 Learned Queen's Counsel for the appellant reminded the court that what was at issue was not the decision of the JLSC, but rather the process by which the decision was arrived at. As learned counsel put it in his speaking note, "it is not the decision but the decision making process which is under review."

11 Learned Queen's Counsel for the appellant acknowledged that there was no set procedure mandated by Regulation for the JLSC to follow. Regulation 8 of theCommission's Regulations set out above states what must be considered and not how the consideration is to be accomplished other than a suggestion of an interview.

12 What was complained of on behalf of the appellant, and in a sense is the central core of the argument by learned Queen's Counsel, was that the JLSC having decided to determine the issue of the fitness of the appellant by way of a hearing conducted on an adversarial basis, the appropriate standard of procedural fairness had to be applied to that procedure which the JLSC in fact decided to adopt. As an expression of principle, I find the latter statement entirely unremarkable.

13 The appellant filed an affidavit in support of his application for leave for judicial review in which he reviewed, from his point of view, the procedure that had been adopted by the JLSC when he appeared before them on 28^th February 2006. Notwithstanding the risk of prolixity, I quote a substantial portion of that affidavit describing in the appellant's terms the procedure followed:

"On Thursday the 24^th of February, 2005 while at my office at the Financial Intelligence Unit, I received a letter from the Commission under the signature of Ms Angus Smith, Secretary to the Commission, inviting me to a meeting of the Commission to be held at the Grenada Grand Beach Hotel on Monday the 28^th of February, 2005 at 1:30 pm. This letter stated that I was being invited to this meeting, inter alia, "in light of the concerns which have been raised by the Bar Association". The letter further stated that I had the option of being accompanied to the meeting by a person of my choice. A true copy of this letter is now produced and shown to me and is hereby annexed and marked "H.W.2."

"The letter further stated that the Bar Association would be present at the meeting to explain the basis of their opposition to my appointment. Accompanying the letter was a bound volume entitled "Grounds for Opposing Mr. Wildman's appointment as Attorney General of Grenada Volume 1 "(Grounds of Opposition Volume 1)" comprising some 53 pages of documentation including newspapers from both local and international sources, numerous pieces of correspondence in the form of e-mails and letters, various judgments and other Court documents and multiple affidavits. The issues raised by the documentation spanned some 11 years and related to events both within and outside of Grenada. A true copy of this bound volume is now produced and shown to me and is hereto annexed and marked"H.W.3"

"On Monday the 28^th of February 2005 at 1.30 p.m. I attended at the Grenada Grand Beach Hotel for the meeting with the Commission. Pursuant to the directions which I had received, I was accompanied by Colonel Nestor Ogilvie, retired Colonel of the Jamaica Defence Force, a former Commissioner of Police of Grenada and currently National Security Adviser to the Government of Grenada and the Chairman of the Supervisory Authority of Grenada.

"At this meeting the Commission comprised:

• i. The Chairman Mr. Adrian Saunders, then Acting Chief Justice;

• ii. Mr. Justice Albert Redhead;

• iii. Mr. Justice Lyle St Paul, retired High Court Judge;

• iv. Ms Justice Monica Joseph; and

• v. Ms. Josephine Huggins

Also present were the Secretary Ms Angus Smith who recorded the minutes of the meeting and two members of the Bar Association namely, the President Mr. Ruggles Ferguson and Dr. Francis Alexis, the leader of one of the political parties opposed to the Government of Grenada, the Peoples Labour Movement.

The meeting commenced with the Chairman of the Commission inviting the members of the Bar Association to articulate their objections to my appointment to the post of Attorney General.

"Mr. Ruggles Ferguson stated at the outset that the Bar Association was not to be taken to be questioning my qualifications to be appointed Attorney General of Grenada. He referred to many of the matters set out in the Grounds of Opposition volume 1. Mr. Ferguson also referred to many items not set out in said Grounds of Opposition Volume 1, which he stated would be contained in a subsequent document which was yet to be provided to the Commission.

"During the meeting, a second bound volume of documents was brought to Mr. Ferguson by one Ms. Foster. This second bound volume comprised some 60 pages of documentation including journal articles numerous pieces of correspondence in the form of e-mails and letters, various judgments and other Court documents and multiple affidavits and was presented to the Commission by Mr. Ferguson. The second bound volume entitled Grounds for Opposing Mr. Hugh Wildman's Appointment as Attorney General of Grenada Volume 2 (Grounds of Opposition Volume 2") was seen by me for the first time only during this meeting with the Commission. A true copy of this second...