Hindu devotees lose in Privy Council

A GROUP of Hindu devotees yesterday lost their constitutional motion in the Privy Council in which they claimed their rights were infringed by the delay of the Court of Appeal in granting judgment. Jerome Boodhoo and Khamkaran Jagram, filed the action against the Attorney General on behalf of the Sanatan Dharma Sudhar Sadha, which is a body of devotees of the Hindu religion who carry on their religious, educational and cultural activities at the El Socorro Mandir.

In 1987, a dispute arose between the Sabha and Deo Somaree Jammuna, who put up a fence on a track leading to the mandir. The Sabha issued proceedings claiming declarations and injunctions. Their action was heard over a number of days commencing on December 5, 1988 and on April 14, 1989, Justice Roger Hamel-Smith, dismissed their claim with costs. They went to the Court of Appeal and the matter was heard in May 1996 by Justices Mustapha Ibrahim, Lloyd Gopeesingh and Jean Permanand. Judgment was reserved, but before it was delivered, Justice Gopeesingh died suddenly on July 17, 1997. The Court of Appeal decided to hear the matter afresh in February 1998. At some time before the new hearing, Justice Ibrahim reclused himself from taking part in the case on the ground that he had only recently realised that he knew the brother of one of the parties quite well.

On April 3, 1998, the Sabha issued a motion in the High Court claiming declarations that their constitutional rights had been infringed by the delay of the Court of Appeal in giving judgment, and seeking an order for monetary compensation. The constitutional motion was heard in the High Court in January 1999 before Justice Nolan Bereaux, who later dismissed the motion. They appealed to the Court of Appeal which dismissed the appeal on December 14, 2001. The Court comprised the then Chief Justice Michael de la Bastide, Justice Rolston Nelson, and Justice Anthony Lucky. The Sabha devotees appealed to the Privy Council which dismissed the motion yesterday. The Board comprised Lords Nicholls, Hope, Carswell, Brown and Baroness Hale.

Lord Carswell, who delivered the judgment, said a delay in producing a judgment would be capable of depriving an individual of his right to the protection of the law in Trinidad and Tobago, but only in circumstances where by reason that the judge could no longer produce a proper judgment or the parties were unable to obtain from the decision the benefit which they should. In the present case, Justice Gopeesingh died almost 14 months after judgment was reserved. “It cannot be said that the appellants would have been deprived of the benefit of the appeal if the judgment had been given on the day the judge died or after a rehearing of the appeal. Nor can it be said that the court would be unable to produce a proper judgment,” Lord Carswell added.

Lord Carswell continued, “it being an appeal, the judge’s decision did not depend on oral evidence of the recollection of witnesses’ testimony, and there was no suggestion that any documentation had been lost or mislaid. “Citizens who are engaged in litigation have to face a number of possible hazards. The members of a court consisting of an even number of judges may divide evenly, so giving rise to the need for a rehearing. A jury may have to be discharged or a judge to recluse himself at an advanced stage of a trial, without anyone having been at fault. A judge may die or take ill before concluding the hearing of a case or before judgment is given. These constitute the ordinary risks inseparable from litigation, which cannot be laid to the door of the state or be regarded as breaches of constitutional rights,” Lord Carswell added.