Levi Maximea v The Chief of Police et Al
| Jurisdiction | Dominica |
| Judge | Webster JA |
| Judgment Date | 07 December 2023 |
| Neutral Citation | DM 2023 CA 3 |
| Court | Court of Appeal (Dominica) |
| Year | 2023 |
| Docket Number | DOMHCVAP2020/0009 |
The Hon. Mr. Mario Michel Justice of Appeal
The Hon. Mr. Trevor Ward Justice of Appeal
The Hon. Mr. Paul Webster Justice of Appeal [Ag.]
DOMHCVAP2020/0009
THE EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
Civil appeal — Res judicata — Filing of new claims addressing same issues pending the delivery of judgment — Whether the learned judge erred in finding that the new claims were litigated and determined in earlier proceedings — Whether the learned judge erred in striking out the claim on the ground of abuse of process — Whether the delay in the delivery of the judgment resulted in breach of the constitutional right to a fair hearing within a reasonable time — Whether rule 26.3(1)(c) of the CPR 2000 is inconsistent with section 103 of the Constitution
On 20 th November 2019, the Appellant, Levi Maximea attempted to pursue claims for wrongful dismissal and constructive dismissal in claims No. 247 and 248 of 2018 respectively (“the New Claims”). The New Claims sought substantial damages for his dismissal from the Dominica Police Force including aggravated damages and exemplary damages, damages for infringement of his constitutional rights, and pre-judgment and post-judgment interest.
The Respondents applied to strike out the New Claims on grounds that (i) they are an abuse of the process of the court in that they allege that the Appellant was unlawfully dismissed and/or constructively dismissed from the Dominica Police Force which are claims that have already been litigated by the courts and (ii) the claims are statute barred having been brought more than six years after the causes of action arose. The application was heard by Stephenson J. On 12 th June 2023, the learned trial judge delivered a written judgment by which she found that the New Claims were an abuse of the process of the court and struck them out.
The Appellant appealed against the learned judge's order dismissing the New Claims. The essence of the appeal is that the learned judge erred in finding that the claims in the New Claims were litigated and determined in earlier proceedings. The Appellant also relied on two additional grounds: (i) that the failure to deliver reasoned judgment after trial on the merits for more than 11 years breached his constitutional right to a fair hearing within a reasonable time and (ii) the power in part 26.3(1)(c) of the Civil Procedure Rules 2000 to strike out public law proceedings after trial on the merits on the ground of abuse of process is inconsistent with section 103 of the Constitution and thus unconstitutional, void and without effect.
Held: dismissing the appeal with costs to the Respondents to be assessed if not agreed within 21 days of the date of this order, that:
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1. Where a matter becomes the subject of litigation and adjudication by a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case. The court will not (except in special circumstances) permit the same parties in subsequent litigation to raise issues that could have been brought forward as part of the subject in the first litigation, but which were not through negligence, inadvertence, or even accident. This rule is not based on the doctrine of res judicata in a narrow sense, nor any strict doctrine of issue estoppel or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits when one would do.
Henderson v Henderson (1843) 3 Hare 100 followed; Barrow v Bankside Members Agency Ltd. [1996] 1 All Er 981 followed.
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2. The Appellant's New Claims were struck out because they were an attempt by the appellant to re-litigate issues that had already been heard by the court. The Appellant was not entitled to bring fresh claims on the ground that decisions were outstanding in Claims No. 139/2011 and 121/2012 (“the Old Claims”). This was an abuse of the court's process.
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3. The claim for constructive dismissal was also correctly struck out as being res judicata. This Court is bound by the decision of the Caribbean Court of Justice which upheld the judgment of Stephenson J in claim No. 54 of 2009 which included the finding that there was a claim for loss of future earnings and gratuity based on constructive dismissal of the appellant from the Police Force.
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4. The trial judge was correct in striking out the New Claims and there is no reason to interfere with her decision.
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5. As a general rule, the Court of Appeal does not have original jurisdiction to entertain breaches of the Constitution. It has jurisdiction in two situations: (i) on appeal from a final decision of the High Court where such issues were raised for determination, and (ii) where such questions arise in extant appellate proceedings. In this case, there is no final decision on the constitutionality issue in the High Court and the Appellant must bring the case under the second situation. His challenge to the constitutionality of the delay in the delivery of the judgment in the Old Claims by filing an additional ground of appeal does not qualify as an issue that arose in extant proceedings. The challenge should have been raised in an appeal against the decision of the Old Claims, or in the High Court as was done in claim No. 84 of 2015. In these circumstances, the Court does not have original jurisdiction to deal with the alleged breach of the Appellant's constitutional rights to a fair trial by the delay in the delivery of judgment in the Old Claims.
Allen Chastanet v Ernest Hilaire SLUHCVAP2019/0005 (delivered 16th January 2020, unreported) followed; Akim Monah v R GDAHCRAP2021/0015 (formally 2014/0002 delivered 23rd February 2022, unreported) followed.
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6. There is nothing unusual, irregular, or unconstitutional about a superior court taking upon itself the power to strike out the claim for abuse of process. Even without CPR rule 26.3, such an entitlement is an inherent feature of all superior courts to prevent misuse of their procedures. The claim that CPR rule 26.3(1) is unconstitutional lacks merit and Stephenson J was entitled, and right, to strike out the claim.
CCJ Application No. DM/A/CV2021/001 applied.
The appellant in person
Mrs. Tameka Burton for the Respondents
Webster JA [AG.]: This is an appeal against the order of the learned trial judge, Stephenson J, striking out and dismissing as an abuse of the process of the court two claims brought by the Appellant, Levi Maximea (“Mr. Maximea”), against the Chief of Police, the Police Service Commission and the Attorney General of Dominica (“the Respondents). The claims were brought by Mr. Maximea on 20 th November 2018 claiming substantial damages of over XCD 40 million in each claim plus pre-judgment and post-judgment interest and costs. The claims are the last in a series of claims brought by Mr. Maximea against the Respondents and other persons starting in 2005 concerning his employment and later his dismissal from the Dominica Police Force. It is necessary to outline the various claims that were made by Mr. Maximea over the years to fully appreciate the judgment of the learned trial judge striking out and dismissing the 2018 claims and the appeal from that judgment.
Mr. Maximea was an officer of the Police Force of the Commonwealth of Dominica from February 1982 up to the time of his dismissal in April 2012. He was an ambitious officer who felt that his qualities as an officer were not recognised and rewarded by the Respondents. He was also dissatisfied with the way his claims were handled by the courts. Below is a summary of his claims and how they were dealt with by the courts.
DOMHCV 2005/0006 is an application by Mr. Maximea against the Respondents and three senior police officers seeking declarations that the Respondents failed to consider him to be an officer who was eligible for promotion, and to promote him, and for various other declarations related to his employment as a police officer. The application was dismissed by Henry J on 1 st May 2007.
DOMHCV 2009/0054 is a claim by Mr. Maximea against the Respondents for judicial review and administrative orders including declarations, damages and other reliefs regarding his treatment as an officer in the Police Force. The claim was amended to include a claim for damages for the tort of misfeasance in public office based on the Respondents' failure to promote him. The claim was heard by Cottle J in October 2011 and by a written judgment delivered on 31 st July 2013, the learned judge dismissed the claim.
On appeal from the judge's decision, the Court of Appeal found that the Chief of Police was in breach of the Police Service Commission Regulations insofar as he failed to forward to the Secretary of the Police Service Commission and the Permanent Secretary responsible for the Police Service a report each year in relation to Mr. Maximea as required by regulation 31 of the Police Service Regulations. The Court of Appeal allowed the appeal and remitted the claim to the High Court to determine whether Mr. Maximea was entitled to damages resulting from the breach of regulation 31, and if so, the quantum of such damages. 1
On 19 th November 2014, Mr. Maximea filed a notice of application for assessment of damages. The application was supported by the affidavit of Mr. Maximea. In his usual style, the affidavit was prolix and dealt with the events related to his claim in great detail, even if the details were only marginally relevant or not relevant at all to the claim. The affidavit dealt with the bases of his claim for damages including the...
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