The Keith Mitchell government in the Botanical Gardens is continuing to put up resistance to former Cabinet Secretary Gemma Bain-Thomas who has approached the high court to get monies due to her for the manner in which she was unconstitutionally removed from the position.
Bain-Thomas is entitled to nearly one million EC dollars based on s high court ruling in her favour against Mitchell’s ruling New National Party (NNP) administration following its victory at the polls in 2013.
Dr. Mitchell called the Cabinet Secretary within hours of his return to power following the elections and signaled to her that he did not want her to serve his government in that capacity.
Bain-Thomas was confirmed in the position by the 2008-13 National Democratic Congress (NDC) of former Prime Minister Tillman Thomas.
The embattled Cabinet Secretary has filed a motion in court to seize a number of government’s removable assets like vehicles that amount to close to one million dollars in order to satisfy the court judgment.
A hearing of the matter was held last week in which Solicitor General, Dia Forrester opposed the move on behalf of the State.
As a public service, THE NEW TODAY reproduces in full the case as put forward by the Solicitor General:-
IN THE SUPREME COURT OF GRENADA
AND THE WEST INDIES ASSOCIATED STATES
HIGH COURT OF JUSTICE
(CIVIL)
GRENADA
CLAIM NO. GDAHCV2020/00191
IN THE MATTER of sections 1,8 and 16 of the Constitution of Grenada, Schedule 1 to the Grenada Constitution Order 1973, Chapter 128A of the Continuous Revised Edition of the Laws of Grenada
AND
IN THE MATTER of an application by Gemma Bain Thomas for a declaration as to the contravention in relation to her of sections 1 and 8 of the Constitution of Grenada and for relief pursuant to section 16 thereof
BETWEEN
GEMMA BAIN THOMAS
CLAIMANT
AND
THE ATTORNEY GENERAL OF GRENADA
DEFENDANT
DEFENCE TO THE ORIGINATING MOTION AND AFFIDAVIT OF THE CLAIMANT
- In relation to the averment of the Claimant that there has been a breach of her constitutional rights provided for in Chapter 1 Section 1 (a) and (c) of the Constitution being pursued on the basis of Section 16 of the Constitution, the Defendant states as follows:
(a) That Chapter 1 Section 1 (a) and (c) of the Constitution are not actionable and that the High Court has no jurisdiction to adjudicate on a constitutional challenge premised on Chapter Section 1 (a) and (c) of the Constitution and or to do the same using the provisions of Section 16 of the Constitution. For ease of reference, the provisions of Section 16 of the Constitution are set out below:
(1) If any person alleges that any of the provisions of sections 2 to 15 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.
(2) The High Court shall have original jurisdiction
(a). to hear and determine any application made by any person in pursuance of subsection (1) of this section; and
(b)to determine any question arising in the case of any person which is referred to it in pursuance of subsection (3) of this section and may make such declarations or orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 2 to 15 (inclusive) ofthis Constitution:
Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.
(3) If in any proceedings in any court (other than the Court of Appeal, the High Court or a court martial) any question arises as to the contravention of any of the provisions of sections 2 to 15 (inclusive) of this Constitution, the person presiding in that court may, and shall if any party to the proceedings so requests, refer the question to the High Court unless, in his opinion, the raising of the question is merely frivolous or vexatious.
(4) Where any question is referred to the High Court in pursuance of subsection (3) of this section, the High Court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision or, if that decision is the subject of an appeal to the Court of Appeal or to Her Majesty in Council, in accordance with the decision of the Court of Appeal or, as the case may be, of Her Majesty in Council.
(5) Parliament may confer upon the High Court such powers in addition to those conferred by this section as may appear to be necessary or desirable for the purpose of enabling that court more effectively to exercise the jurisdiction conferred upon it by this section.
(6) The Chief Justice may make rules with respect to the practice and procedure of the High Court in relation to the jurisdiction and powers conferred on it by or under this section (including rules with respect to the time within which applications may be brought and references shall be made to the High Court).
- In relation to the averment of the Claimant that there has been a breach of her constitutional rights provided for in Chapter 1 Section 8(8) of the Constitution being pursued on the basis of Section 16 of the Constitution, the Defendant states as follows:
(a)The Claimant has an alternative remedy available that may be pursued in relation to the actions or failure of a public authority to act other than seeking constitutional redress and the attempt to pursue constitutional redress is an abuse of the process of the Court.
(b) There has been no violation of Section 8(8) of the Claimant’s constitutional right. The assertions of the Claimant in relation to a purported violation of Section 8(8) of the Constitution is not particularise and has no meritorious basis on which an action may be pursued or does it disclose a cause of action to be defended. For ease of reference, we set out the provisions of Section 8(8) of the Constitution:
(8) Any court or other authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other authority, the case shall be given a fair hearing within a reasonable time.
(c) Moreover, the Claimant has failed to pleaded any particulars and or otherwise substantiate the following assertions to disclose a cause of action as those assertions are nothing more than bare assertions which ought to be struck out as they disclose no cause of action to be defended:
i. Unreasonableness
ii.Lack of good faith
iii. Failure to act with reasonableness
(d) The facts being relied on by the Claimant in these proceedings are identical to the facts used by the Claimant in GDAHCVAP2015/0013 Gemma BainThomas and the Attorney General of Grenada and the Public Service Commission and GDAHCV2014/0082 Gemma Bain-Thomas and the Attorney General of Grenada both of which are concluded and therefore, are res judicata matters that cannot now be used to relitigate issues of like kind.
(e). Further, the Claimant entered into an Agreement with the Government of Grenada on 9th October 2018 wherein special damages were quantified for her constitutional entitlements from August 2018 to the 7th day of March 2025. There was no agreement for the Claimant to continue on the payroll of the Government of Grenada as she was no longer employed with the Government of Grenada. As such, there was no basis for the Claimant to have a legitimate expectation and or otherwise to be maintained on the payroll of the Government when she was not employed by the Government. The Claimant’s debt is a judgment debt and not a claim for wrongful termination of an employment contract.
- Further, the Claimant has failed to take any steps to mitigate her damages that may have been sustained as a result of her unemployment and has not pleaded any attempts to do the same in accordance with her legal duty to mitigate any damage allegedly sustained.
- The Claimant has failed to follow the provisions of the Crown Proceedings Act in Order to commence enforcement against the State. As such, this Court has no jurisdiction to Order the Defendant to enter into a Payment schedule with the Claimant based on the Claimants pleadings in this Claim wherein constitutional redress is sought.
- In relation to the Claimant’s request for a writ of execution against specified moveable property of the State of Grenada, the Defendant states as follows:
(a) that request is expressly prohibited by Section 71 of the Civil Procedure Act Chapter 55 of the Revised Laws of Grenada 2010 as amended.
(b) that there is no right at common law for a writ of execution against the State for property owned by the State. In the absence of the same, there is no legal basis on which the Court may grant an order for the sale of assets of the State.
- The asserted loss incurred by the Claimant is too remote to establish that the Defendant caused that loss and no particulars for that allegation have been pleaded by the Claimant which warrants those aspects of the Claimant’s claim being struck out. The alleged losses include:
(a)Loss of rebates on property taxes – There has been no indication of how the Government of Grenada has caused this loss.
(b) Loss of NIS benefits – The Claimant was no longer employed by the Government of Grenada as such, there were no National Insurance Scheme contributions to be paid by the Government as employer or deductions to be made from the Claimant as employee. In fact, the 8th October 2018 Agreement between the Claimant and the Government of Grenada makes no provisions for dealing with National Insurance Scheme Contributions since the Claimant was not going to continue as an employee of the State (c) Loss of interests or earnings on the Claimants various accounts that had to be liquidated prematurely because of non-payment of the judgment debt:
- Transactional savings account, retirement savings account and lifetime savings account with Ariza Credit Union, each earning 3.25% per annum; and
- Regular savings (Timesaver) Account with the Republic Bank (Grenada) Limited, earning 2.0% interest per annum.
There is no indication of how the Government of Grenada has caused this loss and certainly any claim for interest from those losses are too remote to ascribe to the Government of Grenada.
- The Claimant has failed to particularise and or otherwise substantiate the assertion that the non-payment of the judgment debt as agreed between the Claimant and the Government of Grenada was calculated to and did affect the Claimant’s interest and or that it was the deliberate act for an improper purpose and expediency in breach of the Claimant’s constitutional rights.
The Defendant asserts those are nothing more than bare assertions which ought to be struck out for failure of the Claimant to plead a Claim that gives rise to a cause of action to be defended.
- The Claimant has sustained no damages and or has no legal basis to claim vindicatory damages and or interest and those respective relief sought in the claim should be dismissed.
- Each and every allegation of fact contained in the Claimant’s Originating Motion and Affidavit in support and not herein expressly admitted is denied as if the same had been specifically set forth herein and expressly traversed seriatim.
Dated this 15th day of September 2020
Dia C Forrester
Solicitor General
Attorney General’s Chambers
Legal Practitioners for the Defendants
CERTIFICATE OF TRUTH
I, Patricia Clarke, Permanent Secretary in the Ministry of Finance being duly authorised by the Defendant hereby certify that the facts that in this Defence are true
Dated 15th September 2020
Patricia Clarke